Select Committee on Constitutional Affairs Second Report

8 Public Funding and legal advice


83. The tribunal system was initially intended to be accessible without the need for legal representation. Until 2000, legal aid was not available for representation before the immigration appellate authorities (IAA). In August 1999 the Lord Chancellor's Department announced that legal aid would be extended, subject to a new 'merits test' to cover representation before the IAA from January 2000. At the same time, legal aid for asylum and immigration cases generally was made subject to tighter regulation through contracting. This has restricted legal aid work to specialised firms and organisations working under contract with the Legal Services Commission.[75]

84. Asylum and immigration legal aid costs have risen from £81.3 million in 2000/1 to £174.2 million in 2002/3. On 5 June 2003, the Department issued a consultation paper on proposed changes to publicly funded immigration and asylum work.[76] We reported on these proposals on 28 October.[77] The Government made its final announcement on 27 November, stating that it would:

  • introduce a financial threshold of five hours for the initial decision-making process, which can only be exceeded with prior authority of the Legal Services Commission (LSC);
  • ensure that no legal aid work is undertaken in any appeal cases without prior approval from the LSC, which will set financial thresholds in individual cases which pass a merits test for legal aid—it has since been made clear that the merits test itself will not change;
  • introduce accreditation for all lawyers and case-workers doing legally aided asylum work;
  • introduce a Unique Client Number to reduce unnecessary changes of solicitor;
  • the LSC will have power to vary the financial threshold up or down for individual firms whose track record justifies this;
  • the LSC will also continue to allow top quality firms with a good track record on appeal cases to proceed without prior authority on appeal cases, up to a set financial threshold, although any autonomy would have to be earned.

85. The Government stated that "these proposals are estimated to save around £30m in 2004-05 against what [it] would be spending were [it] not to introduce prior authorisation".

The future of Legal Help[78]

86. In its announcement of 27 November 2003, the Government also stated that:

"consideration is being given as to whether legal aid is needed at the initial stage in all cases. The Government will make a further announcement on any further changes in due course."

87. In a memorandum (dated 24 October) to the Committee's inquiry into the public funding proposals, the Department stated:

"Officials are examining a number of inter-related issues. These include the possibility of making changes to the current process to maximise effectiveness, efficiency and economy. Officials will also examine the role that legal aid plays in achieving high quality decision-making processes. In principle we want to explore a system where further improvements in decision-making by the Home Office will allow a reduction in Legal Help. This involves re-thinking the levels of legal aid in the context of Home Office decision-making.

This work may lead to changes in the way that legal aid for asylum seekers is delivered. If the Government concludes that such changes are desirable, there may need to be changes to the scope of legal aid. That requires regulations under the Access to Justice Act 1999 subject to the affirmative procedure. Consequential change to contracts would also require consultation with the professions and a period of notice. This work is not yet concluded, but the Committee should be aware that the Government's proposals on the control of legal aid before the appeal stage may be further amended as a result of this work."[79]

88. Home Office administration and the quality of its decision-making was widely and rightly attacked in the consultation responses. It is hard to over-emphasise how far Home Office procedures would have to improve to reach a standard where they could command such confidence that Legal Help to applicants could be cut, even if it were in principle thought to be a good idea. In fact, the principle clearly points in the other direction. This is for a number of reasons:-

  • The powers of the Home Office are already very substantial. To reduce Legal Help at the initial stage in such a contentious, difficult and important field would be quite wrong. The Council on Tribunals has suggested in the context of appeals that the balance has swung too far towards the executive. This proposal is to take a giant leap further in that direction.
  • Good quality legal representation assists the Home Office in reaching the correct decision early on ['front-loading' or 'right first time']. This proposal seems to adopt the view that legal advice provides no help to decision-makers at all.
  • Negative initial decisions will lead to more out of country appeals under these proposals. Such applicants might never receive legal advice before their removal. There will be no opportunity for the unrepresented bona fide applicant to receive legal assistance to put right those matters which have gone wrong in their application, before they are once again in the country from which they fled.

89. In its submission to this inquiry in Spring 2003, the Council on Tribunals stated that it would "have serious misgivings about any moves to curtail the availability of publicly funded advice and representation in the field of asylum and immigration".[80]

90. Evidence suggests that it will be a long time before Home Office decision making is of sufficient quality to justify the proposed reduction in pre-decision legal aid (Legal Help). It is wrong in principle and inefficient in practice to deny Legal Help to those who need it in asylum and immigration cases.

91. The loss of Legal Help is likely to prove a false economy, leading to greater expense on appeals. Properly directed, good quality legal advice is beneficial to all parties.

Quality of legal advice

92. In his submission to this inquiry, Mr Justice Ouseley (the President of the IAT) commented that:

"much of the advice and representation on the claimant's side is of poorish quality and there is considerable mismanagement of cases. But many do a good and committed job often against considerable disadvantages. The Home Office Presenting Officers are variable, and include some, particularly at the IAT level who are very good. There is growing trend for the Home Office to bring appeals in cases where it was not represented before the Adjudicator. It certainly makes life difficult at both tiers where the Home Office has not been represented before the Adjudicator. Incidentally, there do not appear to be the numbers of experienced HOPOs around that I am told there once were."[81]

93. His Honour Judge Hodge (the Chief Adjudicator) stated:

"Appeal hearings are best conducted and the system operates most fairly when both sides are represented. There remain too many occasions when Home Office Presenting Officers are not available because of staff shortages. Taken overall the quality of representation available to appellants has been improving, particularly as the [Office of the Immigration Service Commissioner] regime and the Legal Services Commission Contracts system have come into play. A likely result of any significant restriction in the representation available before adjudicators will be longer hearings and fewer cases will be able to be decided."[82]

94. The Council of Immigration Judges have also commented that the quality of representation, on both sides, is variable:

"New Presenting Officers have been recruited but there appears to be a difficulty in retaining them. In satellite courts (sub hearing centres to main IAA centres) counsel have habitually been instructed for the Home Office until now but the signs are that the necessary funds have run out and the practice may be discontinued. This will not assist adjudicators to complete three to four cases each day they sit. The public interest in fair but expeditious hearings requires that the Home Office be represented in as many appeals as possible.

Representation for appellants can also be very variable in quality. The Legal Services Commission does not appear to have the resources to verify the quality of representation by solicitors and counsel to the degree and extent necessary to ensure that the quality of preparation of appeals is maintained. The late instruction of counsel is a frequent occurrence. This often leaves counsel unable to comply with their duty to the adjudicator and to their client in terms of being able to bring out all relevant oral and written evidence."[83]

95. The Council on Tribunals also expressed its concern that "instances of poor standards persist" and that "provision is somewhat patchy and inclined to be concentrated in particular geographical areas".

96. Nonetheless, in oral evidence Judge Hodge and Charles Blake stated that it was fair to say that the quality of legal representation was "slowly getting better" for litigants[84]. They also added that good quality representation from either side made a great difference. Moreover, Judge Hodge indicated that under the current system, legal representation was the best way to achieve fairness was for both sides stating that:

"If as a result of the changes, that means the number of appellants without representation gets larger we will, of course, manage because that is what we do, but it will have knock-on effects in terms of the speed with which the process takes place. I certainly think when the person is unrepresented the hearings generally take longer and there are very big practical problems in our jurisdiction because very few of the appellants speak English".[85]

97. On 5 June, the Government consulted on proposals to introduce a new system of accreditation for all lawyers and case workers doing legally aided asylum work. This will be separate from that administered by the Office of the Immigration Service Commission and that already run by the Law Society. The new scheme will be administered by the Law Society. There was overwhelming support for this proposal in the consultation responses.

98. The Asylum and Immigration (Treatment of Claimants) Bill 2003/04 also contains provisions to:

  • Empower the Immigration Services Commission to raid the premises of illegal immigration advisers
  • Require designated professional bodies, such as the Law Society, to comply with requests for information from the Immigration Services Commissioner
  • Establish a new criminal offence of advertising or offering immigration advice when unqualified.[86]

99. We support the removal of poor quality, backstreet immigration advisors from the system. We would welcome the implementation of robust rules and procedures to ensure that solicitors and other legal representatives are properly accredited. Under the adversarial process the system operates most fairly when both sides are represented.

75   LCD Press Notice, 31 August 1999 Back

76   Asylum Legal Aid, the way forward, DCA consultation paper, June 2003 Back

77   Fourth Report of Session 2002-03, HC 1171 Back

78   Legal Help refers to publicly funded initial legal advice which is given before detailed preparation for any case is undertaken Back

79   Fourth Report of Session 2002-03, HC 1171, Appendix 1 Back

80   Ev 116, para 15 Back

81   Ev 74 Back

82   Ev 72 Back

83   Ev 200, para 6 and 7 Back

84   Q 59 Back

85   Q 58 Back

86   Clauses 16-19 Back

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