Evidence submitted by the Council on Tribunals
The Council was set up by the Tribunals and Inquiries
Act 1958 and now operates under the Tribunals and Inquiries Act
1992. The Council's main statutory function is to keep under review
the constitution and working of the 80 or so tribunal systems
under its supervision and, from time to time, to report on them.
The Council must make an Annual Report to the Lord Chancellor
and the Scottish Ministers, which is laid before Parliament and
the Scottish Parliament. The Council must be consulted before
procedural rules are made for any tribunal under its supervision.
The Council responded to the DCA's November
2004 Consultation Paper on "The Asylum and Immigration Tribunal—the
Legal Aid Arrangements for Onward Appeals" (CP 11/04). In
its response the Council concentrated on two aspects of the paper:
first, retrospective granting of legal aid; secondly, the two
options outlined in the Consultation Paper for the "prospects
of success" test for legal aid funding.
RETROSPECTIVE GRANTING
OF LEGAL
AID
In commenting on CP 11/04 the Council said that
it recognised that the provisions relating to the retrospective
granting of legal aid are already contained in legislation, under
section 26 of the Asylum and Immigration (Treatment of Claimants,
etc.) Act 2004.
However, the Council noted that the relevant
provision (section 103D) was only introduced to the original Bill
at a late stage, with little opportunity for external commentators
to make representations about it. Although the Council recognised
that the proposals in CP 11/04 were intended to give effect to
the wishes of Parliament, the Council nevertheless took this opportunity
to register its strong disapproval of section 103D. The Council
considered such a provision to be fundamentally unfair. It would
have the practical effect of precluding review of the Tribunal's
decision in a significant number of meritorious cases.
PROSPECTS OF
SUCCESS TEST
The Council commented on the proposed new rules
for the award of legal aid in asylum appeals. The Council did
not consider either of the two options proposed in CP 11/04 to
be satisfactory. The Council considered that, despite the assertion
to the contrary, both options come close to creating a "no
win, no fee" arrangement for the payment of legal aid fees,
with unsuccessful cases likely to be funded only on an exceptional
basis.
The Council noted that even for established
legal aid practitioners it would often prove difficult to judge
the true merits of their clients' case before it is finally determined.
The Council had major concerns that, under these proposals, an
appellant's prospective legal adviser would, in effect, be sitting
in judgment on a case. The Council considered this to be wrong
in principle. Consequently the Council strongly disliked both
options. The proposals will deprive the great majority of appellants
who do not have independent means of the benefits of prior funding
for a review and reconsideration. The Council considered that
neither of the options were satisfactory, but of the two, Option
1 would be less objectionable than Option 2. The Council did so,
on the basis that Option 1 requires a less subjective standard
to be met in order for the supplier to be successful in his application
for retrospective funding.
Council on Tribunals
December 2004
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