5 Conclusion
43. It is a laudable aim to reduce the number of
unmeritorious cases in the system. There are alternatives to this
untrialled scheme. In evidence to the Committee, the Department
indicated that:
Regular audits and peer review by the Legal Services
Commission highlighted over-claiming and issues regarding the
quality of advice given. This is where the LSC have identified
unnecessary or duplicate work completed by suppliers when their
bills have been audited. There was also evidence that there was
duplication of work occurring. In 2002, there were 85,865 asylum
claims yet the LSC issued over 156,000 new matter starts in immigration.
Whilst this figure also represented non-asylum matters, and cases
where clients had changed representative for legitimate reasons,
the position was not entirely explained. There is anecdotal evidence
that clients were shopping around for advice and suppliers continued
to pursue unmeritorious cases under public funding.[29]
44. Given that it is usually the LSC which authorises
expenditure on asylum appeals on the basis that such cases have
reasonable prospects of success, it seems apparent that if appeals
are being brought that are entirely without merit, the LSC must
share some of the blame. A possible solution would be for the
LSC to withhold funding at first instance from suppliers who are
bringing cases which appear to be without merit, rather than pursue
a retrospective scheme.
45. If the Government does pursue the idea of
retrospective funding, and if both appellants and suppliers are
not to be adversely affected we conclude that the merits test
will have to be set at a lower level. Where an appellant has reasonable
prospects of success in demonstrating that the AIT has made an
error of law and the result of that decision would be that he
or she could be deported to face death, torture or other degrading
treatment, he or she should not be denied justice by a funding
scheme which proposes the requirement to demonstrate more than
this. The Government dropped the 'ouster clause' which restricted
appellants' access to the courts. It is important that the legal
aid system should not be used to restrict legitimate appeals.
29 Ev 48 Back
| 
