Examination of Witnesses (Questions 120-139)
MR JOHN
SCAMPION CBE AND
RT HON
LORD NEWTON
OF BRAINTREE
OBE
21 OCTOBER 2003
Q120 Peter Bottomley: We were hearing
earlier that it was useful for the client's representatives to
be present at the Home Office interview. Would your remarks apply
to that as well?
Mr Scampion: Yes, they would.
Lord Newton of Braintree: Can
I just say, Chairman, that I support the general proposition which
I think underlies much of what was said in the previous part of
this morning's session and what Mr Scampion has just said, which
is that one way to reduce costs escalating, because cases go right
up the system, is to put greater emphasis on the quality of initial
decision making and if you go to the next stage, make sure that
proper advice and support is available at the adjudicator's stage,
which will reduce the number of things that go on to the Immigration
Appeal Tribunal. For that reason I think the Council would be
sympathetic to the view that there is merit in advice being available
at the interview stage. I do not say it is absolutely required
in all cases, but anything that can help to improve the quality
of the basic decision, other things being equal, is going to reduce
costs further up the scale. While we are on this subject I will
just take this opportunity to indicate that the Council very much
shares the concerns expressed by some of your previous witnesses
about the fact that Home Office presenting officers do not attend
such a large proportion of hearings. This is not a totally unfamiliar
problem. There is a similar problem in relation to social security
tribunals, the appeals service, where the Department of Work and
Pensions is not great at sending along presenting officers, but
that is outside the scope of this inquiry. As far as this one
is concerned, we believe that the absence of Home Office presenting
officers is a material difficulty.
Q121 Peter Bottomley: I suppose we
ought to remember that, again from the previous witnesses, there
is a merits test on whether someone should apply and if they apply
and get turned down, whether they should appeal. Presumably if
we had a better quality of representation people are more likely
to say you should not continue with this because you have not
got the merits and that might have come out of the Home Office
interview as well.
Lord Newton of Braintree: That
seems to me a fair point.
Q122 Keith Vaz: Lord Newton has pinpointed
the Home Office as a source of problems in this area and you talked
about the decision-making taken by the Home Office and indeed
the way in which cases are presented. I am not sure where your
responsibilities lie and where those of Henry Hodge lie in respect
of listings of cases.
Lord Newton of Braintree: The
Council on Tribunals has an oversight role but not any executive
role. We often press for greater case management powers in a whole
range of fields because they have been demonstrated to be one
way of improving the efficiency and quality of systems, but the
availability of case management powers would be a matter in all
cases for regulations, which vary and then the operation of those
regulations would be for the head of the system, in this case,
Henry Hodge.
Q123 Keith Vaz: You are aware of
the concerns about the delays in getting cases listed partly because
of the delays in ensuring that cases come from abroad. Have you
taken any steps to make sure that the flow of cases from the Foreign
Office to the Appeals Centre at the Home Office and to the LCD
is made as smooth as possible? Has there been any concern about
that?
Lord Newton of Braintree: I cannot
immediately recall recommendations we have made on specifically
that point, but I do emphasise in any event that we can raise
issues and possibly make proposals. We do not have executive powers
to carry them into effect. I will check whether we have said anything
about that because I do not know off-the-cuff.
Q124 Keith Vaz: The Home Office decided
that the flow of cases to the tribunal was to be such that eight
out of nine cases should be asylum cases and one out of nine cases
should be immigration cases, which obviously causes problems to
MPs because their constituents complain bitterly about having
to wait so long to get a hearing. Has that balance changed in
recent months?
Lord Newton of Braintree: Not
to my knowledge, but it may simply be that I have not come across
that point.
Q125 Keith Vaz: Have you received
any complaints, even though this is not in your remit, about abuse
of the Legal Aid system from any members of the public? Obviously
they are not clear what your role is as your role has only been
going for a very short time. Do people write in to you and say,
"By the way, I think that the Legal Aid system is being abused
in immigration cases"? Obviously you pass the cases on. Have
you received any of those letters?
Mr Scampion: I think we have received
very few complaints in precisely those terms, clients saying the
Legal Aid system is being abused, but we have had a not inconsiderable
number of complaints by clients of legally aided firms who consider
that the firm is not doing enough work to justify themselves and
to prosecute their case through the system. So I think one can
say by inference I have those, but perhaps it would be slightly
unlikely for people to couch a complaint in those terms, not fully
understanding, as many clients do not, the nuances of the system
in which the solicitor is working.
Q126 Keith Vaz: As far as regulation
is concerned, a lot of these immigration advisers who certainly
I deal with are people of an ethnic minority background and the
reason why people do not go to them and instead to high street
solicitors is because they do not speak the language. What steps
are you taking to ensure that the standards that are offered from
the advisers are of a sufficient level that would justify their
accreditation by you?
Mr Scampion: In broad outline
we are doing two things. For 18 months of our two and half years
of operational existence we have been working on what has been
termed in answer to earlier questions a kind of peer review. We
base our regulation on the principle of audit. We insist that
caseworkers go into firms but not before firms are allowed to
operate because that is logically impossible, but early on in
our knowledge of them we go in and look at them and that audit
is based upon an examination of files to see to what extent we
are satisfied that they are doing the appropriate things in pursuing
each case, be it immigration or asylum. Where my caseworkers,
who are not all fully experienced immigration advisers, I cannot
expect them to be, have any doubts about the effectiveness of
the firm we call in a panel of experts, immigration practitioners
who have had a long track record and they do a fuller and more
detailed audit. That has been the first limb of our approach.
I am not happy as a regulator that that in itself is sufficiently
effective, it goes substantially down the way, but I think it
is important to ally that to another aspect which goes under the
heading of testing. We are beginning to introduce a system of
testing which we have been piloting now for a few months and we
will continue to pilot for the rest of this business year, some
people call it an examination although examination is not a popular
word and some do not like it, but we believe the testing is an
important feature of a regulatory scheme that feels it needs to
be satisfied of the competence of advisers to work before they
are in effect allowed to work.
Q127 Keith Vaz: But the vast majority
are ethnic minorities, are they not?
Mr Scampion: They are, but that
does not change the basis or the principles on which this process
rotates.
Q128 Keith Vaz: Absolutely. What
steps are you going to take to ensure that because of the nature
of the work additional support is given to these people who wish
to set up as advisers? Community people tend to go to members
of their own community for help. They cannot go to Alison Stanley
because she does not speak Urdu.
Mr Scampion: I think they are
in two categories. The ones who are capable of doing the asylum
work that you have been concentrating on in this Committee and
detailed immigration work need to have some years practice behind
them, they are not organisations just starting up. If a community-based
organisation such as you are referring to, Mr Vaz, starts up they
will not be doing asylum cases under our regime for quite some
considerable time. What we will do, however, to help them is to
offer a scheme of training which we have funds for. We have some
training provision for our Level One and some of our Level Two
work which we invite people to come and partake in. One of my
difficulties as regulator is to give the sort of organisations
you are referring to the feeling of sufficient self-confidence
and confidence in the scheme that they can come forward and carry
out their work and feel that they are going to be supported by
a regulator who elsewhere has got to take some fairly tough action
to deal with some of the more unscrupulous operators who have
been terrorising clients for quite some time. We have to get a
clear message of support to these sort of organisations that you
are referring to.
Q129 Mr Soley: Mr Scampion, leaving
aside the issue of the principle of the cap or the level at which
the cap is set, you have described the difficulty of the interviewer
being very individualistically variable and I understand that.
Can you envisage a situation where it would be possible to appeal
against a limit of time in order to get more time or do you think
such a scheme would be impracticable?
Mr Scampion: I do not think such
a scheme would be impracticable. What I do think is that it would
be a pity if that was the scheme that had to be introduced. Forgive
me if I expand my answer too much or stop me if I do. I believe
that the principle of capping expenditure is fundamentally right.
I have been too long in the public service not to have that view.
I do not believe that capping at an individual point of delivery
of service in this difficult area, for all the reasons we have
touched on, is the right approach if you can find another approach.
It might be the approach that has to be adopted faute de mieux
in the end, but as I have said in my consultation response, I
think time ought to be taken to tease out by an iterative process
of discussion whether a capping principle can be allowed to apply,
which does allow for the flexibility which I think is the all
important principle that needs to be enshrined into this sort
of approach. What I would want to have a look at, if it were left
to me, would be a cap based upon giving firms accreditation and
it is the accreditation of firms which I think is the most valuable
proposal in the consultation paper that you are looking at. If
that accreditation proposal can be made to work, and I think it
has got to be made to work, you then are contracting with a group
of suppliers whose credentials and whose ability have been largely
proven through an effective accreditation, and if you are working
on an accreditation which is looking not just at knowledge and
skills but also at ethical standards, I think those can be tested,
then you have a cadre of suppliers whose competence is far better
assured than it is at the moment under the system. The cap that
I would want to apply is a cap based upon an allocation of the
number of cases which they would have to do within an overall
sum and they would be audited from time to time to make sure that
the principles—one of those principles would be that cases
which are unfounded should not be taken—have been observed
and adopted by the chosen firms. That is the capping regime that
I would like to see at least explored. I know it has got problems,
it is bound to have wrinkles and I can see people who are defensive
about it saying it will not work, but I think it is worthy of
exploration because it does actually put responsibility where
I think it should be, that is on the firm to make sure that they
are behaving competently and honourably and effectively and it
makes them financially responsible for meeting the all important
financial limits.
Q130 Mr Soley: It is a very relevant
argument and I understand and have some sympathy for the general
approach because I have described capping as a blunt instrument
and I think we are acknowledging that. I think the problem, and
you almost accepted it in a way, is that what you are describing
takes time. It is not just the public money that is being thrown
at this at the moment, it is actually the question of bad representations
from companies who should not be in the business. If we could
find a way in which people can appeal against the cap, where it
is inappropriate, that might be at least a medium-term measure
for dealing with this rather more effectively than allowing the
present and very unsatisfactory system, whether from public expenditure
or quality of representations, to go on as it is.
Mr Scampion: I agree. If there
is a time to look at the system that I am describing—and
personally I would be sorry if there were not time to do that—then
as an interim stage a cap based upon a somewhat more expansive
and generous allocation of time, with the ability to move beyond
it is clearly a way forward. Perhaps cap is not the right terminology,
I do not want to get into semantics on it, maybe threshold is
the more appropriate term because it is something that by definition
you can move beyond, but you cannot move beyond a cap by definition.
Q131 Chairman: Are you comfortable
with the Government's proposal that if a client changes his representative,
a fresh Advice Limit should only be given if you have received
a complaint about the organisation or the OSS? Is this not going
to give rise to complaints about solicitors in order to get more
time for advice?
Mr Scampion: I think inevitably
it will, Chairman. I think people will want to find ways of moving
from one solicitor to another. I would hope, under the sort of
principles that accreditation could bring, that would be less
prevalent, but they will want to do it. To use the appeals machinery
that I have as a device to click into another tranche of Legal
Aid seems to me to be using the appeals system in a way that was
not really intended.
Q132 Mr Clappison: Could I ask Lord
Newton, who has already made some observations about the nature
and quality of representation on both sides in the process, how
he feels the proposals will impact on the efficiency of the appeals
process, particularly on the length of hearings and the frequency
of adjournments which all create waste and delay.
Lord Newton of Braintree: I would
link it with the point that I made to Mr Vaz earlier on about
the higher the quality at the early stages the less there will
be the larger costs of getting up to the appeal tribunal and the
like. Incidently, it certainly was not intended as a particular
criticism of the Home Office, just a statement and I do want to
make that clear because obviously they have their problems. Other
things being equal, the availability of advice at the stage of
interview will contribute to the quality of decision making. There
may be a number of cases in which it does not make any difference
but there will be others in which it does and therefore on the
whole I favour the availability of the advice at the early stages
to try to eliminate the risk of things going wrong and going further
up the system. On the question that you asked, Mr Clappison, I
think it follows from what I have said that a restriction which
risks, at any rate, less legal support being available at hearings
or less well-prepared legal advice being available at hearings
must carry the risk of removing some of the advantages of having
good quality advice in keeping the decision-making process moving.
At the extreme, I remember in my early days as Chairman of the
Council going to a hearing of the Immigration Appeal Tribunal
which was actually brought to a halt by the presiding judge on
the grounds that the quality of the representation available was
so bad that it was unfair to the client to proceed and he made
some very vigorous observations about possible reporting to the
Law Society and how he would not put up with it, but the net result
was that the case was adjourned. Now, that is costly and of course
adds to the delay. That is an extreme example but it is an illustration
of the sort of problem that could arise if the result of the proposals
were to be less adequate availability of proper legal advice.
Q133 Mr Clappison: To have the tribunal
sit again in a case such as the one you have mentioned is expensive.
Lord Newton of Braintree: Indeed.
I think one has to acknowledge and I would want to be very clear
that there clearly are problems here. This is not the first Government
to have got concerned, I ought to acknowledge, about the size
of the Legal Aid bill in this and other areas and where ministers
in the departments concerned have come under pressure from the
Treasury to do something about it. As somebody who has been Secretary
of State for Social Security among other things, I think it is
a very recognisable position. I am not trying to say I do not
think there is anything that the Government needs to address.
What I would be trying to say is that there are balances to be
struck—and I would like to pick up in a moment one of Mr
Soley's points that links with what Mr Scampion was saying—and
it is not always going to be the case that you save costs in the
long run by the most obvious way of doing it in the short run
if the net result is to increase the burden on the judicial system.
On the point that I would just like to pick up and really support
Mr Scampion on, I certainly share the view that the quality of
representation is probably the most significant problem looked
at from my perspective and the Council on Tribunals' perspective
because what we are interested in is that the people taking these
cases, which are not of small significance to them, should get
good justice and therefore the quality of representation we see
as a problem that really does need to be tackled on the basis
of some of the anecdotes like the one I rehearsed just now and
of the evidence of the work of the Legal Services Commission and
some of Mr Scampion's experiences.
Q134 Mr Soley: I think that is a
helpful point. It has crossed my mind several times that the tribunals
overall must have quite a good picture of where the problem area
of quality of representation is and I do not necessarily mean
in terms of the names of companies but of the type of failure.
I wonder if you have got any knowledge of the type of failure
that is most common?
Lord Newton of Braintree: I have
not got direct knowledge of that. I have been present at one of
Henry Hodge's meetings with his user group which may even have
contained some of the people who were giving evidence to you just
now so I am well aware of the concerns, but I would not be able
to give you an answer off-the-cuff of what the main problems are.
I think it is very often the case that people turn up who simply
have not, for whatever reason, had time to look at the papers
properly.
Q135 Mr Soley: So it is a lack of
preparation of the case, you suspect, I am recognising you do
not know for sure, but if I pushed you that would be your response,
would it not?
Lord Newton of Braintree: That
is a guess, I hope a reasonably educated guess, but it does not
rest on some great survey.
Q136 Mr Soley: Do you have a mechanism
within it to do a piece of fairly basic and simple research on
it?
Lord Newton of Braintree: We could
look at that. I do not know how easy it would be to do it. I am
a bit suspicious of quick and simple research, I have to say and
it would probably be better for the Committee to seek that from
the people more directly involved, that is to say the administrative
support team of the asylum adjudicators or the Immigration Appeal
Tribunal, if they were prepared to give you views. We would inevitably
have to go to them in order to come to you so you would be getting
it secondhand.
Q137 Ross Cranston: I am just wondering
whether you could give us a note on the extent to which the Home
Office does not appear. The Chief Adjudicator has told us they
do not appear but there is no figure on it. Is the Home Office
now churning up more than in the past?
Lord Newton of Braintree: I think
there is a figure in one of these bits of paper I have got here
but I am not sure that I am going to be able to find it immediately.
Q138 Chairman: If you could help
us with it later we would appreciate it.
Lord Newton of Braintree: I am
fairly sure I could. 35% comes into my mind, but I cannot immediately
put my eye on it.
Chairman: By all means drop us a note
on that.
Q139 Keith Vaz: Do you have a grid
of all your tribunals and a list of the length of the backlog
in each tribunal? How does the IA and the IAA compare to other
tribunals in terms of listing dates?
Lord Newton of Braintree: We have
been working recently on our Annual Report which contains a list
of all the tribunals which come within our pretty wide remit and
in the last two or three years we have actively sought to add
to the report information of that kind and made increasingly intensive
efforts to get information from tribunal systems about exactly
these points and that is an area where we are seeking to go on
improving the information flow. So the answer is that to some
extent we do have figures, yes. They are not yet as comprehensive
as we would like and we would like to make them more so.
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