Examination of Witnesses (Questions 300-311)
10 FEBRUARY 2004
MR DAVID
LAMMY MP AND
MR JOHN
SCAMPION CBE
Q300 Mr Soley: I understand the issue
about merit, but what I am asking you is whether you anticipate,
looking at the policies in the round, that the number of appellants
who are not legally represented will increase. You seem to be
saying you do not think it will increase.
Mr Lammy: Right across the board
we want to support people that are genuine in their claims and
what we have said on the legal aid front is, "If your case
has sufficient benefit in order to command taxpayers' money in
terms of legal aid, or if it has merit on appeal, you will get
legal aid. If we make the determination that it does, not, ie,
that there is not an arguable case here,"—and I have
to say that it is a lower standard than you would expect in terms
of the judicial process on whether a case should get legal aid—"then
you will not get legal aid". If you are asking me, does that
mean that the appellant then continues to represent themselves
on their own, I do not know how that is going to pan out. My instinct
is, probably not and that they are going to accept that they have
reached the end of the road and we begin to make removal a serious
issue.
Q301 Mr Soley: What I am questioning
here is not your motivation, which I am sure is good. What I am
questioning is whether, if as a result of your policies the number
of people legally represented is smaller, bearing in mind also
that many Home Office Presenting Officers do not turn up, you
could actually end up delaying the system. If the Home Office
Presenting Officer is not there for an appellant case and if as
a result of your general policy there is a reduction in the number
of appellants who are not legally represented, what happens to
the case?
Mr Lammy: My own assessment is
that it is not going to pan out quite like that. I think there
will still be a number of cases that have got legal aid, cases
where there is an arguable case, cases where there is merit that
will move through the system and lawyers will be there in our
new IAT. As now, lawyers make the determination, and I have certainly
seen this in terms of people who come to see me. When someone
comes to them they say, "Look: I am sorry; I cannot represent
you because on the basis of the Act you are not an asylum seeker",
and that person has no representation. That determination is now
being made by the Legal Services Commission because you know that
there has been some serious concern that we have had, I am afraid,
too many less scrupulous lawyers in this area. I am not sure in
practice how different the figures will be but it must be right
that people do not get legal aid where there is no merit.
Q302 Mr Soley: I understand that and
I want to come to the quality of representation in a moment. What
I just want to clarify again is, are you saying that in your view
the number of people legally represented in cases is not going
to change that much? It seems to me it is almost certain to go
down. That is right, is it not?
Mr Lammy: I think it will go down.
Forgive me: I thought the determination you were asking me to
make was how many of those cases still go on.
Q303 Mr Soley: No. I was talking about
who will be legally represented and who will not be.
Mr Lammy: How many of those cases
continue in the system is what I am talking about. I think that
if you have not passed the legal aid threshold then you are certainly
not going to pass the judicial threshold. There will be some people
who feel that they want to represent themselves but I think the
vast majority will accept that they have not got a case because
they know they have not got a case, plus the fact that, because
what we are doing in terms of the single tier will mean that it
will become very obvious very quickly that they have not got a
case, it will now mean that they are not able to play the system
out even longer.
Q304 Mr Soley: Turning to the quality
of representation, do you feel that the main problem now is with
the professionally qualified advisers or do you still feel it
is with the more general advice system?
Mr Lammy: John may want to say
something about the advisers. There have been very real problems
in terms of some of the advice that is available on the asylum
and immigration side. I think it is right that we have put in
place now accreditation through the Law Society, the sitting of
exams so that people can be sure, and it is right that we have
got the OISC doing the job of work that they are doing to drive
those standards up. This work began, obviously, a few years ago,
but that it should continue I think is right. One of the problems
that I always find on the asylum and immigration side is that
the most vocal voices are often the quality practitioners, many
of whom are in London, that they are seriously undermined by those
who are not of the standard that they should be.
Mr Scampion: May I, Chairman,
if it is appropriate, say a word about that? I think the standard
is going up. It is not as high as I believe it needs to be. It
is not as high as I honestly believe it can be. If I can just
look alternative it in three sectors, there is the publicly funded
lawyer, and I do believe the Legal Services Commission accreditation
programme is going to make serious inroads into raising the quality
of those lawyers with only one caveat: it does depend upon
an adequate supply coming forward, and if there is an inhibition
on that supply because of the perceived restriction in funding
that could turn into a problem, but of course whether that is
a problem or not time only will tell us. There is the sector that
I represent. It is not a negligible amount of representatives
who appear before the adjudicators in the tribunal at the moment;
it is a minority, but it is a significant minority. What we are
able to do is to introduce through our quality audit approach
measures to ensure in due course that those advisers meet the
proper standards of representation in presentation of cases. That
leaves a third sector, if you like, and that is the non-publicly
funded lawyer. The regulation of that sector, if I am frank, is
not as effective as the regulation of the other two sectors is
likely to become unless we can persuade the Law Society to introduce
measures which are going to be more proactive in terms of ensuring
that an accreditation system works for them and in terms of ensuring
that their Professional Standards Unit gets involved in looking
at the lawyers to make sure that they are able to deliver in a
way that I believe the other three sectors will deliver. It is
heartening at one remove to see that there is some improvement
recognised by those who are experienced in the courts system.
It is a long way though, I think, from saying that the improvement
is where it should be. However, as I say, I think the measures
that are in contemplation now, if we can work at them assiduously
(as I hope we will), will give us a good chance of making sure
that the new courts system, whatever that is going to be, is supported,
as it needs to be, by a representation system that is strong and
supportive, because if it is not then obviously it will be much
more difficult for the new proposals to work.
Q305 Mr Soley: You are putting your faith
in the regulatory system rather than something like the Office
for the Supervision of Solicitors?
Mr Scampion: I have to put my
faith in the statutory regulation system, Mr Soley, because that
is what I am here to do. Yes, I do.
Q306 Mr Soley: What about the OSS? I
see it as still a failing organisation.
Mr Scampion: If I may say so,
I would not go so far as to say that. What I would say about the
Law Society is that over the last two years there have been some
signs of them looking much more actively at the need to get involved
in immigration and it may be—and this is something I am
not really qualified to make a final judgment on—that their
regulation of immigration and asylum matters is a better regulatory
system than their regulation elsewhere. That is something they
will comment on; I cannot, but there are signs that what they
are introducing is beginning to work. They need to go further
and they need, if I can put it this way, to go as far as the Legal
Services Commission are going in what they are doing in respect
of the publicly funded lawyers.
Ross Cranston: I think last time you
were here, partly tongue in cheek, I invited you to take over
the regulation.
Q307 Mr Soley: Does the Home Office failure
to provide representation cause your department trouble? It must
do, surely?
Mr Lammy: The basic principle
of tribunals, as you know, is that the assumption is that it is
informal, that you can represent yourself. Indeed, during the
committee stage I think there was cross-party support, and I think
this was because of the nature of our tribunals, for a more inquisitorial
nature in terms of how our tribunals work. I was happy to indicate
that we are keen for the judges to look at how they can be more
active, more inquisitorial, in the system. I think there is a
presumption in tribunals that perhaps does not exist in other
more adversarial parts of the law. Against that backdrop the adjudicators
themselves have said that they do find it assists them if they
have a Presenting Officer, and I am pleased that the last quarter
has seen two-thirds of those cases represented. As I have said,
I am pleased that the Home Office has been able to recruit more
Presenting Officers but it is not essential in terms of the functioning
of the system.
Q308 Mr Soley: Finally, can I ask you,
either within your department or at an interdepartmental level,
have you considered the possibility of moving in this area of
policy from the adversarial system to the inquisitorial system?
Mr Lammy: That discussion is ongoing.
It goes on very much with the judges themselves. I do not think
we are about to move from what we have to a French-style inquisitorial
system but I do think there are ways in which we can facilitate
our judges to be more active and that is probably appropriate
where we have a single tier and we are in those discussions at
the moment and I am open to those discussions.
Q309 Mr Soley: And that is discussed
with the Home Office as well, or just within your own department?
Mr Lammy: No. That is discussed,
of course, with our colleagues in the Home Office.
Q310 Chairman: If that discussion is
not resolved in the context of this Bill we could find ourselves
sitting here a year later as yet another initiative to change
the system, so will it be resolved in the context of this Bill?
Mr Lammy: I very much hope so.
What I am indicating is that there is a whole spectrum of things
that you can do to establish that more inquisitorial system. I
do not envisage a complete volte face in us moving to the
sorts of things you might see across the water in France but I
do envisage ways in which our judges can be supported to be more
inquisitorial.
Q311 Chairman: Can I just clarify one
point? Under the proposed clause 10(6) as amended it says that
the exceptional nature of the case will allow an oral hearing
on review. What elements would justify such a hearing?
Mr Lammy: That has got to be a
determination that the senior judges in the IAT themselves make.
What we are saying is that there has been an issue—and I
was talking about speed and length of time before—about
cases being remitted back from the IAT tribunal to the adjudicators
and that is obviously, in terms of the length of time and other
things, an issue for us. What we have said is that if something
comes up that is exceptional, if, for example, there is a change
of circumstances or something like that, then the tribunal at
review stage should be able to hear that matter orally if it sees
fit.
Chairman: Thank you very much. We are
working hard to try and make sure that the report is in the hands
of Members when we get to report stage. Early March we assume
that is likely to be. This is quite difficult given the Government's
breathtaking timetable on this and other issues. We are certainly
endeavouring to do that, so we are grateful to you both for your
help this morning.
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