Oral evidence

Taken before the Constitutional Affairs Committee

on Tuesday 14 October 2003

Members present:

Mr A.J. Beith, in the Chair
Peter Bottomley
Mr James Clappison
Ross Cranston
Mrs Ann Cryer
Mr Clive Soley

__________

Witnesses: MR DAVID LAMMY, a Member of the House, Parliamentary Under-Secretary of State, Department for Constitutional Affairs, and MS CLARE DODGSON, Chief Executive, Legal Services Commission, examined.

Q1  Chairman: Welcome, Mr Lammy and Ms Dodgson. We are very pleased to have you before us. The Committee agreed to undertake a quick inquiry with just a couple of evidence sessions and we have also received a lot of written evidence in order to be in a position to comment to the Government on the proposal when it is put forward along which they shortly have to make a decision and we are glad to have your presence with us today. One of my colleagues, Ross Cranston, will want to declare that he is a lawyer but not practising in this field. We understand that you would like to make a short opening statement, which we are very happy for you to do, so go ahead, please.

Mr Lammy: May I begin by saying that I am very grateful for this inquiry. The Committee will be aware that, if you like, the old Lord Chancellor's Department began this consultation process on asylum legal aid just as it became a new department and myself and the Lord Chancellor and Secretary of State, Charlie Faulkner, arrived in the department. That consultation came to an end at the end of August. What I have endeavoured to do is to go out and speak to practitioners in order that I could be properly informed as to how they felt. I have to say, as it is kind of relevant, as the MP for Tottenham - and I see Clive Soley smiling - I have a fair assessment of these matters because I see them every week in my surgery and indeed I know some of the leading practitioners in this area because I sometimes have occasion to refer people for help. So, we went out and we talked. Naturally, I did not just stay in London, I went down to Brighton, to Barnsley, to Cardiff and to other places and the Secretary of State endeavoured to have the All Parliamentary Group, Neil Gerrard's group, come in and see him and talk about these matters as well. Our position is that we are listening and we want to take into consideration the views that this Committee comes forward with and I am grateful that you have indicated that you are conscious of time and other matters in assisting us with that process. It is very helpful that Clare is here with me as again the new Chief Exec of the LSC and I know that she too has been around and about and she might want to say something about that. In short, to be clear, we consulted on the basis that we needed to ensure value for money in this area. The legal aid asylum fund has increased from around £74 million to £181 million over the last three years and it must be right that, within that context, we need to make sure that we have the mechanisms in place to ensure that that money is being spent properly and that, at the same time, we are guaranteeing quality. Members will know, because they made many, many representations and indeed, when I arrived, I was making representations about the large amount of advisers or supposed advisers, quasi-legal people in the system, who were providing very, very poor quality advice and I think we have sought, or at least my predecessors have sought, to do a lot about that in terms of the establishment of the OISC, accreditation for advice and other things. At the same time, there are still concerns about poor-quality providers who are lawyers and this consultation was conducted on the basis of accreditation for them as well; it was conducted on the basis of the unique file number to ensure that there is not duplication, that people are not presenting having gone to multiple lawyers and having been through the system two or three times and, by and large, the lawyers to whom I have spoken have been receptive to both accreditation and the unique file number. It is right to say that they have not been receptive to a cap on hours. That is not surprising in the sense that it would be surprising for any lawyer to say that that was good. The determination we have to make is, do we have that figure approximately right and to look and hear what people have to say about the particular case, mindful of the fact that we only have so much money and that we need to get people through the system with quality advice as quickly as we can. That is as much as I would say in opening; I do not know if Clare wants to add anything.

Ms Dodgson: Just to reinforce what the minister has said and also to say that, like him, I have been out and about talking to working practitioners, visiting magistrates' courts, visiting working firms with legal aid suppliers and visiting representative bodies for different aspects of the profession. So, yes, very much again listening and understanding what is happening out there in the field.

Chairman: We thought we might begin by looking at the cost aspects with which you started your statement.

Q2  Peter Bottomley: First of all, the sort of question you would expect which is, if the average cost per matter - a technical expression which most people will no doubt understand - has risen by about 93%, what have been the main causes of this increase?

Mr Lammy: I think there are a number of things that will lead to that. There is still duplication in the system. It is still the case that some people - and indeed they present at my surgeries - have had more than one solicitor and we have not, at this stage, been able to track that process and indeed the mechanisms that the LSC currently have are largely based around surnames and other things and that does not enable you to track people.

Q3  Peter Bottomley: So, this is where the file number issue would come in?

Mr Lammy: That is where the file number issue is significant. I am afraid that I have to say to the Committee that, just taking London as a whole - and obviously I have a feel for my own area and people will have a feel for their own area - we have 372 suppliers in London. The LSC categorised those suppliers, as Category 1 suppliers, Category 2 suppliers and Category 3 suppliers. Category 3 suppliers can be loosely described as poor suppliers; they are people who have been audited by the Legal Services Commission and that audit has come back suggesting that they are over claiming and, in London, there are over 100 in that category.

Q4  Mrs Cryer: Did you say over claiming?

Mr Lammy: Yes. The LSC has not been satisfied with the audit that has come forward, and that would bear up the evidence that comes from MPS.. I have certainly had cases where a solicitor has assisted in the witness statement, for example, and the witness statement has amounted to, "This person was involved in politics for 30 years in this country", bosh, there we have it. It is not satisfactory to then claim the full sum and that sort of practice is continuing. Therefore, we need to focus very definitely on what activity is taking place. We also need to ensure that the right people are commissioning the right bits of work.

Q5  Peter Bottomley: I do not want to break your flow but, if the sum has gone up for each matter, have things become worse or is there some other exploitation? Why have the costs per event risen?

Ms Dodgson: I think it is fair to say that there is a balance really to understand what is going on underneath that. Partly, we have put in more checks and balances which take more time to do; partly, we have multiple suppliers, particularly in London, so we are paying overhead costs, I suspect, more frequently and more spread out than we should. A third issue is that the number of people and the number of applications being processed has increased. A fourth point is that there have been some changes in the Home Office, really positive ones, catching up with some of the backlogs of processing, where we have been involved in helping with that and therefore that has generated some of the costs as well but, as the minister says, there are real questions about quality and value for money underneath and I think that is what we have to be really rigorous in addressing.

Mr Lammy: Also, Peter, the consultation was very much conducted on this basis. We need to ask ourselves under what circumstances does someone need a medical report which is currently paid out of the pot? Under what circumstances does someone need a expert report which is currently paid out of the pot? Under what circumstances does someone need to have more than one interpreter at an interview, which is currently often the case and which is paid for out of the pot? Under what circumstances should we be paying for travel and waiting times? Plus the fact that we are worried about those at the bottom end of the market who are undermining the very significant quality. There are some very, very good providers who have been there historically. I think it is combination of all of that.

Q6  Peter Bottomley: I suspect that most of this afternoon's session will be about the proposals and how they might improve matters either in terms of quality of service or in terms of saving taxpayers' money and what the disadvantages may be to deserving cases. My preliminary question was about how we had got to where we are. Perhaps we can move on a little from that. When funding was introduced for representation before the immigration adjudicators and IAT, there was an expectation of an increase in the total amount of spending. Can we know what the figure was that was expected and whether the increase has gone beyond that expected increase.

Mr Lammy: I do not have that figure available to me. What I can say is that, yes, we would expect that to increase the pot but, at the same time, it would also be right, if my recollection of that period is true - and obviously I was not in post then - that part of the problem at the tribunal stage was that there was not adequate throughput at the tribunal and that in fact people were representing themselves at the tribunal and that is lengthy and slow. Once you have the advocate at that stage and we have increased the capacity upon the adjudication stage, so you can get the throughput to tribunal, that in itself must also be a factor within cost.

Q7  Peter Bottomley: I can understand that. If the figures are not with you ...

Mr Lammy: I can undertake to provide those.

Q8  Peter Bottomley: It would be helpful to know. If one could then go into slightly more specific fields. You mentioned four things which might contribute to the increase in total spend, some of which, as I say, would have been expected. I am not saying that all this is unexpected. There is the introduction of funding for representation; there is the effect of the Human Rights Act bringing greater complexity to asylum work; there are the results of the dispersal policy or practice; and the increase in the costs of disbursements as opposed to the profit costs. Is there any way of saying roughly how much the increase might be attributed to each or any of those?

Mr Lammy: I think the view in the department is clear: we would expect all of those to have increased the pot but not as much as currently is the case. Some of them have what may be a negative effect. Let us take dispersal. Yes, it is the case that we will have to pay for travel to hearings and other things, but it is also the case that regional lawyers - and the lion's share of work that has gone to regional lawyers has increased substantially - are cheaper than lawyers in London. So, there is some balancing there. We are paying for more waiting times, but actually they are cheaper. The Human Rights Act - and obviously I am Human Rights Minister and I have to say that it is a good thing - we are unable in any area to disaggregate what that cost is; that would just be too disproportionate for the system. The costs of disbursements is very much one of the things we put in the pot in terms of the consultation.

Ms Dodgson: I think that the unique identifier number will help because, whilst we do know that our regional suppliers are higher value and lower cost, there is this question about duplication and there is also the question of value where we are mandating the specialist centres for people, so we are not getting suppliers with legal aid contracts who are bringing clients out of some of the specialist centres where we have already had public funding to pay for a service in there already.

Q9  Peter Bottomley: I suspect we are moving on to what is more likely to happen rather than the model of the past. The consultation paper was well written, but there is a massive gap in it which is, given that one of the reasons for some of these changes is the use of taxpayers' money, the amount of it and whether it is done properly, which is perfectly fair and reasonable and I am not suggesting it is a criticism, I am one of those who would expect that there would be some kind of model showing what might have been the reduction in the amount of money which would be spent given the changes we know that are going to happen, for example if there are going to be fewer people applying for immigration or asylum tribunals and adjudications, and the various other reasons why the costs will come down naturally. How much might the budget come down even if these changes, which have a cost implication, are not introduced?

Mr Lammy: Peter, I can understand the question but I have to indicate the difficulty in providing that. Numbers are coming down and we have see a third drop this year for the first time in five years and you will know that I sit on the joint ministerial body with Beverley Hughes that is largely responsible for all those matters that are very firmly within the Home Office, but it is obviously hard to predict where that will go, it being, yes, a substantial drop, but nevertheless the early stages of that and, as I have said, it is difficult to cost certainly the Human Rights Act and some of the other aspects given that we are at the early stages of that. I will endeavour to go as far as I can in costing that and providing that to the Committee but I understand that there is difficulty in reaching those determinations at this stage and, in a sense, things like the introduction of the unique file number will enable us in a much greater way to associate those costs in a way that previous systems have not facilitated us in doing.

Q10  Peter Bottomley: The stakeholders, those who are interested in this, would say that we ought to ask you and I now do, if none of the changes in the consultation were to take place, no unique file number and all the rest of it, what changes would you expect to the costs anyway? There are some fairly obvious ones. If you moved on to staged payments, that has brought the cost higher initially but they are paying now what they would pay next year, so there is a reduction that would follow from that. If you had a reduction in the numbers of people coming for adjudication, there is an expected fall there. If you go on expanding the legal service provision in dispersal areas, as you have indicated, there is a benefit there. There is the question of non-suspensive appeals now in 24 countries. In my day, departments could not make suggested changes without some detailed negotiations with the Treasury and somebody, whether in the department or in the Treasury, ought to have known what the expectation is from which variation will come from these changes.

Mr Lammy: I can indicate the expectations on the basis of these changes but we are consulting, so let us see how that comes out. The furthest I can go is that we expect that to run into the tens of millions but I want to say that a very, very, very preliminary figure is around a £30 to £40 million saving.

Q11  Chairman: As a result of the changes you have proposed?

Mr Lammy: As far as the changes as we can model them go, but that is as far as I can go.

Q12  Chairman: Mr Bottomley asked the question as to what would be the reduction that would result from the other things that are happening without any of the proposed changes being made?

Ms Dodgson: I think it is fair to say that there would be a reduction because we have seen the figures go for three years year-on-year from £80 million to £170-something million. Some of the changes in government policy have seen the numbers of applications come down and therefore, by definition, there has to be a saving. The point about the unique identifier number is another area where we would see a saving because of a reduction in duplication and so on. I would like to see the Legal Services Commission looking at reducing some of the bureaucracy and we are already doing that because, as I think I said -

Chairman: You are going on to changes. We are simply trying to establish what reduction would have happened if no changes were made.

Peter Bottomley: If, for example, there is a drop in the number of asylum applications by 35% on the figures of last year, can we presume that there is a 35% saving there? If the number of decisions for next year based on application targets which the Home Office, we are told, is meeting were to fall by over 50% from the peak years, will there be a roughly 50% saving there?

Q13  Chairman: We are quite happy to receive some information in writing fairly quickly. You should know that, when we embarked on this, we were told that a memorandum was coming our way which would deal with no doubt matters such as this. We were told today that no memorandum is now coming and I am beginning to suspect that this may be because you have not actually made some of these calculations which we would expect to be made. What is going to happen if we do nothing? What benefits will we secure from doing X or Y? This is simply the preliminary to our questioning in trying to find out what the cost background is and we really do need to see some figures and we are surprised that you have not been presented with those figures.

Mr Lammy: As I have indicated, modelling in this area is difficult and that is largely because of the kind of data that the LSC has traditionally worked under and Clare is charged with tackling that. The proposals themselves go to this issue in terms of the unique file number. I have indicated, as far as I can, that the figure is approximately £30/£40 million, but I do not want - and I have to be careful - to put a specific figure in the pot when that figure is variable and is based very much on the results of the consultation. I will endeavour, as far as I can, to provide you with that information and I hear what you say.

Q14  Mr Soley: My interest, David, a little like you, is how we deal with what is a very large problem and I have a caseload of some 400 at any one time and, on a recent trawl, between a quarter and a third had what I would describe as bad representations by the legal profession and I have to say that the Law Society has been very, very cooperative with me and have sent a guidance to solicitors. Bad representation means everything from appalling representation where I have asked for the individual or the company not to put in any further ones or representation that I would not be prepared to pay for individually. So, I know where you are coming from on this. My first question to you is this, capping will work because it is a very blunt instrument and that is the attraction of it, but have you looked at other ways of achieving it because, within this group, there are some very vulnerable people? So, what other options have you considered other than capping?

Mr Lammy: Clive, what we did, which has become a little lost in the noise as tends to be the case in these areas, is that we did actually consult on the basis of exceptions. We say that on page 8 of the consultation and, on page 10 of the consultation, we asked the profession what those exceptions should be. The lawyers to whom I have spoken and the representations that I have read have come up with a number of things. Some have talked about the situation with unaccompanied minors, others have talked about mental illness, and obviously the not for profit sector, the Terence Higgins Trust and working with Aids victims particularly, Victims Against Torture, the Medical Foundation and others have had representations about particular difficulties. It is our job to look at that in the round and to reach an assessment about the best system going forward. We did consult on the basis of exceptions but I am glad you are supportive of the context that there has to be some sort of cap.

Q15  Mr Soley: The ideal way would be to make sure that all the representations were of a good quality and done within a timescale. The problem is, how do you deliver that without a very bureaucratic or controlling system? If you are arguing that you would look at exceptions to it, are you then saying that the reason why you set the cap so much lower than the Legal Services Commission set it recently is because you want it to be a flexible range of caps? Is that what you are saying?

Mr Lammy: Just for clarity in this area, the cap that we set is roughly the mean average for what we saw as a typical case and you will understand that, when we are looking at this, we are looking at the lion's share bulk of classic, straightforward, asylum-type cases. A person presents, has some English but needs some assistance, the initial interview is conducted, the SEF form and the witness statement is completed within two hours or so, a further hour for advice, half an hour for correspondence and that gets to an approximate working day and five hours was the figure we came out at. That was my understanding of the basis on which that figure was reached. Regarding the LSC's assessment in terms of its manual and other things, a significant part of the hours, on previous assessment, was to do with the interview stage and to do with travel and waiting time and we are needing to be rigorous about both those two things because my experience as an MP and in talking to practitioners is that it is in fact not qualified solicitors who are attending the interview stage with many, many people seeking asylum, it is an outdoor clerk who is attending, and we have to ask ourselves whether it is right that we should pay for someone who is unqualified or should we only be paying in the circumstances in which someone has full accreditation. Travel and waiting time is something else that we must consider in terms of the purse. Perhaps that figure should be incremental within the over-arching figure per hour. I think those are the kinds of considerations we have to reach when looking at the overall plot of five plus four.

Ms Dodgson: Could I also pick up on the right first time point because, in parallel, that is why we are bringing in audit systems, that is why we have quality accreditation, that is why we are developing peer review and that is why, particularly in London where supply is poor, we are removing legal aid contracts. So, I believe that we have to do both things at once.

Q16  Chairman: The time guidance for asylum work that you issued in July 2003 was more generous.

Ms Dodgson: Representation at interview and travelling and waiting times were big elements of that and I think what we are looking at is getting a more intelligent understanding of how we could break those elements down and what is it legitimate and reasonable to look for public funding to pay for, and I do feel strongly about paying legal aid funding at the rate we would pay for legal aid suppliers and getting, as the minister has said, not terribly good representation. The other question is, what value does that add and how do we get the balance between having properly worked-up cases and then making sure that is done rigorously because, if it is not, it comes back through to be redone again, your point about right first time, but how much do we expect the public purse to pay, for how long and to what type of adviser to make sure that that happens, and how do we work very closely with advisers in the Home Office Services to make sure that we are complementary and not duplicatory about the work that we do with people in that process?

Q17  Mr Soley: I have a strong gut feeling that your figure of five hours is too low; I think that is going to need to be revisited. My next question to you is, what do you do about the exceptional cases, of which there are a number and, in a way, perhaps the most obvious one is where the representation has been inadequate?. Are you going to say that those inadequate representations count as part of that money because, if so, I am going to have trouble with a lot of my people and I am going to have to start weeding them out even harder than I am already!

Mr Lammy: I think that clearly we have to ensure that we are doing all we can to drive quality up and, in that context, there are two things we are doing. The first thing is accreditation and I have talked a little about that and I could say some more about that if you want me to. The second thing that we are doing is that we are being quite ruthless about supply. The LSC's assessment is that we have over supply in this area and I certainly know that the context for me, as the MP for Tottenham, is that I do not get people presenting and claiming asylum at my surgery who actually do not have representation. That is not the norm at all. We have 372 suppliers in London doing asylum work. Conversely, we have 225 suppliers doing housing work; we have 342 doing family, divorce-type work. We think there is over supply and we have indicated that, next year, firms that have been consistently Category 3 will not have their contracts renewed. So, we have already got rid of 46 firms, we have introduced peer review to the LSC and brought in senior practitioners to monitor and ensure that we are able to withdraw contracts or assess whether standards have been adequate. There are issues there about the appeal procedures that solicitors expect to go through and, whenever you are dealing with lawyers, you have to be mindful of that and that is something that I want to continue to look at, if I can put it in that way. Alongside being quite tough on the bad quality over the next period, having already got rid of 46, we obviously want to ensure that we have the right number of people to do the right job of work in a market where there are falling numbers.

Q18  Mr Soley: I understand that and I have no problem with it but, however good your system, you are going to have solicitors who fall well below that in their presentation and, if I then get a case like that and I say to you, "This person actually needs better representation", what do they do?

Ms Dodgson: I think there are two questions, whether somebody's representation has not meant that their case has had a fair hearing, in which case there is an appeal system, or there is the seriousness of the case where, if something is very serious and very complex, again, it is pointed out when you make exceptions and what criteria you use to handle those exceptions. Yes, if somebody has not had good-quality representation, they would need to be able to come forward and say, "This needs to be looked at again because my case has not been set out fairly, properly and rigorously."

Q19  Mr Soley: I think I would feel a little more comfortable with this if I had a better indication from the department that the system of appeal against bad representation or in very special circumstances and I am thinking really of the torture victims, that is the one that always tortures us in this in a way. We all know the immigration case that becomes something else and I have to say, sadly, that solicitors, either knowingly or unknowingly, do collude at times with time wasting by multiple applications, but, when you have someone where there is strong suspicion of torture or an ill representation, to have a cut off point of a cap troubles me.

Mr Lammy: As I say, we consulted on the basis of exceptions and indeed we have had representations on that and we are looking and listening to that and you will understand that it is my practice, in terms of the demographics in Tottenham, that the kinds of cases I see at my surgery tend not to be the better providers in London who actually turn people away and are quite responsible about the cases they take and tend to take the more complex cases and they have made some noise in responding to the consultation. It is my job to remind them that we did consult on the basis of exceptions, to refer them to page 10 and page 8 of our consultation and then to come to a view on the basis of everyone we have spoken to, including this Committee, and indeed to be mindful that there will be people who get bad advice initially. We want to see that fall to a very low number but we also have to disaggregate that - and I certainly see them - from people who have been right through the system or indeed have been through the system in another country and then come here to try again or to go through the system again with another lawyer and other lawyers assisting in that process. So, those are the determinations that I think we need to make in coming to our conclusion.

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 Medicine 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 Lawyers' 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 McConnell 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 so on. 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), "Look: 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 are moving around, 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 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 per cent of decisions are not granted by the IND at that initial stage and 80 per cent 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 officers 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 per cent failure rate, as you have put it, - does that vary from firm to firm, from practitioner to practitioner?

Ms Dodgson: It does.

Q40  Ross Cranston: And for those people who have a very high "failure rate", do they fall into the category C? Do not respond now but if you could give us information about that and how it is going to be tightened up that would be very useful.

Ms Dodgson: We are happy to do that.

Mr Lammy: We have had success on bringing in the judicial review. It has fallen from 83 per cent to 34 per cent if my recollection is right.

Q41  Ross Cranston: That is on immigration cases?

Ms Dodgson: Yes, that is broadly right. We will certainly confirm to the last single figure when we write.

Q42  Chairman: The draft immigration specification which you issued to LSC states that practitioners will be allowed to charge their clients on a private basis once the maximum limits have been reached, but that is contrary to the general rule for all other publicly funded work and sets a slightly worrying precedent.

Ms Dodgson: There is a question about what is it reasonable for the public purse to fund for a straightforward case and if beyond that more work needs to be done and the client and the supplier want to do that work, whether in the round of options and exceptions in particular we would want to consider that point. I am sure that the Minister will speak but that seems a reasonable thing to look at.

Q43  Chairman: But you would not allow that in the other areas of legal advice in which you are also trying to limit excess costs and ensure that you are getting value for money.

Mr Lammy: That is why we must look at these things in the round. We must look at them vis-a-vis the whole legal aid pot. We must look at them vis-a-vis what we say is required in this particular case for what is a vulnerable group of genuine asylum seekers but too often is for people who have not got genuine claims and who are not supported by the best advice, vis-a-vis the public purse. That is the balance. It is a difficult balance but that is the balance of determination that we are looking at very carefully in this consultation and that we have to continue to look at.

Q44  Chairman: Another issue is the accreditation scheme. How is it envisaged that that will relate to the specialist quality mark which you audit and the OISC level of competence?

Ms Dodgson: We would want to look at all of them and say can we get a basket of measures that gives us messages about the quality and value for money of our supplier base, and we are trying to look across and say that if we have got a quality mark, if we have got accreditation, if we have got peer review, if we have got other schemes, it may be that we look at streamlining some of those as part of looking at how we accredit suppliers. We do currently look at how those different accreditations relate to one another.

Q45  Chairman: So might one of those be a ticket to accreditation in this case or do you regard accreditation for this work as specific and requiring particular needs to be satisfied?

Mr Lammy: That is where we have got to enter into the right and appropriate dialogue with the Law Society and the professional bodies. As envisaged at this stage we see three tiers: the junior fee earner standard, the senior fee earner standard and an advanced standard for specialists that are demonstrably specialists, and indeed we have said that those specialists will get an uplift. We clearly have to discuss with the Law Society and others how that integrates with the OISC and others but there are, quite properly, different concerns one would have about professional qualifications vis-a-vis advisers who have the accreditation but are not professionals in the ostensible sense.

Q46  Chairman: One of the arguments that has been put to us and obviously is being put to you all the time is, is it not difficult to improve the standard of advice and representation while at the same time imposing strict time limits? Is there not a tension here between these two things?

Mr Lammy: Not necessarily. One aspect of time limits is to focus attention on what is necessary and what is required. How can I put this? We have to look to other areas of law and I have to be conscious of other areas of law when I am doing this. If you go and get divorced not everyone turns up at Mishcon de Reya, who are leaders in this field. If you have got a contract problem not everyone would pitch up at Clifford Chance. We have to be minded of that across all areas of law and I have to be minded of that across all areas of legal aid.

Q47  Chairman: Perhaps I can send you away with a quotation that was drawn to my attention from the previously outgoing Lord Chancellor, who said in 1997 in the Lords: "Many of the finest solicitors and barristers in this country work on behalf of the disadvantaged in our society. ... These are lawyers who do not become rich. They act for refugees, asylum seekers, prisoners, mental patients, victims of abuse and assault. ... To all of these lawyers, I say that their commitment to their clients will be matched by my commitment to them." I am not asking you to comment. I thought you might enjoy it and might like to take it away with you.

Mr Lammy: I will do.

Chairman: We will be reporting very shortly after our meeting on 28 October and thank you again for coming today.