Annex
Response to Letter from Rt Hon Alan Beith
MP, Chairman of the Committee
I am hoping to submit a response to the consultation
paper on the legal aid arrangements in relation to the new tribunal
on behalf of the Administrative Court judges. Like you, I am very
unhappy with what is proposed.
I have no objection in principle to retrospective
public funding provided that it is subject to proper limitations.
It should only apply to renewed applications to the High Court
and not to applications to the tribunal. It is entirely inappropriate
for the tribunal to exercise such a power nor should it depend
upon the ultimate outcome of any reconsideration by the tribunal.
It should only be exercised by the High Court and should depend
upon whether the renewal succeeds in persuading the High court
to remit the case back to the tribunal or send it to the Court
of Appeal.
Neither of the tests proposed is appropriate.
Each is pitched at far too high a level. I entirely agree with
you that a real prospect of success (which is the existing test
for granting permission to appeal) should be the test applicable
and that the Court should have a wide discretion. It is desirable
that unmeritorious claims should be discouraged but, particularly
in dealing with asylum seekers who, if genuine, will face serious
ill treatment or even death if returned, it is important that
reasonable claims should not be deterred.
If retrospective funding is to be applied, it
must only be for second appeals, or their equivalent. Having,
as was inevitable, lost the ouster clause, the government had
to introduce the "temporary" review mechanism to avoid
the High Court being swamped. The results is in effect a two tier
system which has thrown away all the benefits of such a system.
But it does mean that the renewal of an application to the High
Court can be treated as the equivalent of a second appeal. And
it is only the success or failure of that application which should
attract retrospective funding.
I will send you a copy of the courts' response
to the consultation paper in due course.
Hon Mr Justice Collins
22 November 2004
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