Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by The Bar Council

EXECUTIVE SUMMARY

  1.  Asylum seekers cannot gain effective access to the High Court without representation: the proposals will shut out many asylum seekers' and immigrants' access to the courts, doing by the back door what the Government failed to do by the front door during the passage of the 2004 Act.

  2.  There is no justification for circumscribing the High Court judge's discretion to allow costs where he considers that an application, albeit unsuccessful, was competently and properly brought.

  3.  The proposed risk premium of 25% is inadequate.

  4.  Any practitioner whose fees are adversely affected by a funding decision should have a right of review, and the practitioner can only fairly be judged on the information available to him at the point at which he assessed the merits.

THE THREAT TO THE RIGHT OF ACCESS TO THE HIGH COURT

  5.  The Bar Council fundamentally opposes a conditional fee arrangement for fundamental rights cases involving issues such as life or death and freedom from torture. It also has the gravest concern about a scheme which discriminates against asylum seekers and immigrants by granting public funding only retrospectively and applying a higher merits test than applies to other publicly funded judicial review even where other litigants have substantially less at stake.

  6.  The DCA has not explained why the current changes are necessary in the context of a substantial overall reduction in the asylum legal aid budget, the recent legal aid changes (which have already had a detrimental effect upon the economic viability of practice in this field), and the present moves towards accreditation.

  7.  It is worth reflecting on the context in which the statutory arrangements for review by the High Court have arisen. The Government's original proposal was to prevent asylum seekers and immigrants having access to the courts to challenge the legality of decisions of the Asylum and Immigration Tribunal (AIT). It abandoned this proposal in the face of widespread and profound concerns about the implications for the constitution and rule of law. Lord Steyn said in a speech at the Inner Temple on 3rd March 2004 that:

    [The ouster clause] will preclude judicial review on the ground of lack of jurisdiction, irregularity, error of law, breach of natural justice and any other matter. These are the very areas in which the higher courts have repeatedly been called upon to assert the sovereignty of law. The Bill attempts to immunise manifest illegality. It is an astonishing measure. It is contrary to the rule of law. It is contrary to the constitutional principle on which our nation is founded that Her Majesty's courts must always be open to all, citizens and foreigners alike, who seek just redress of perceived wrongs.

  8.  The Lord Chief Justice stated that the proposal to prevent the High Court reviewing decisions of the AIT was "fundamentally in conflict with the rule of law", adding that

    I am not over-dramatising the position if I indicate that, if this clause were to become law, it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution.

What areas of government decision-making would be next to be removed from the scrutiny of the courts? What is the use of courts if you cannot access them?

(Times, 4 March 2004, emphasis added)

  9.  In the face of this criticism, the Government reintroduced statutory review by the High Court of decisions of the AIT. This access to the High Court is fundamental to the compatibility of the Asylum and Immigration Act 2004 with the constitution and the rule of law. As the final sentence of the comment by the Lord Chief Justice quoted above demonstrates, the rule of law requires that asylum seekers have effective access to the High Court where they claim that the AIT has acted unlawfully in determining their appeal.

  10.  The DCA does not suggest that non-English speaking asylum seekers denied the right to work to pay for representation can effectively represent themselves in a paper based High Court application which requires them to identify a point of law. Nor does the DCA suggest that High Court judges will adopt an inquisitorial role in identifying errors of law when faced with applications by unrepresented claimants, or even that the judiciary will have facilities to translate grounds lodged in the claimant's own language (which would in turn require the claimant to have the original AIT decision translated into his own language within the time limit for making the application).

  11.  In those circumstances, to deny publicly funded representation for High Court proceedings under the 2004 Act is effectively to shut out asylum seekers' and immigrants' access to the courts. It is to do by the back door what the Government failed to do by the front door during the passage of the 2004 Act through Parliament.

  12.  The DCA and LSC have rejected suggestions that they are introducing a `no win, no fee' scheme for these cases, but for the High Court proceedings (subject to extremely rare exceptions), a no win, no fee scheme is precisely what is being proposed. In a significant proportion of cases, barristers are instructed only in respect of the High Court proceedings, the proceedings before the appellate authority being dealt with in-house. The effect of the current proposals is that if the application to the High Court is unsuccessful, the barrister will not be paid, regardless of whether the judge considered the application to be reasonably and properly brought.

  13.  The problem is particularly acute for barristers as they are required to be sole practitioners and therefore have no ability to share the risk with colleagues as occurs in solicitors firms. At an open meeting at the Bar Council on Wednesday 8 December 2004, a wide cross-section of the Immigration Bar including many junior practitioners were unanimous in the view that barristers would in time be driven out of this area of publicly funded work if the scheme was introduced as proposed.

  14.  The effect of the no win, no fee regime for High Court applications is chilling enough. The additional and enduring uncertainty over whether practitioners will be paid even for High Court applications that they win creates a double whammy effect which will itself render the scheme completely unviable.

THE MERITS TESTS PROPOSED BY THE DCA

  15.  Of the two options offered in the consultation paper, the second suggested merits test is plainly absurd: it would have the effect of preventing legal representation in life or death cases with a significant prospect of success. As indicated above, the Bar Council sees no basis for applying a tougher merits test to this field than to other areas of judicial review. However, of the two options proposed, the first suggested merits test is the less dangerous in human rights terms.

  16.  The DCA argues that only in exceptional circumstances should payment be available for High Court applications that are rejected. A no less exceptional criterion must therefore be applied to disallowing payment for High Court applications which have been allowed. Where a High Court judge has determined that a rehearing is required, there should be no circumstances other than impropriety on the part of the practitioner (such as withholding information from the judge) where it could be reasonable for costs to be disallowed. This should be reflected in the regulations.

  17.  Either test will discriminate against asylum seekers and immigrants compared to other publicly funded litigants in judicial review proceedings by applying a stricter merits test. Any test must reflect the fact that in some cases, the error of law may be that the claimant was denied any fair hearing by the AIT. If such a breach of natural justice is established, it cannot be appropriate to apply a higher merits test to the ultimate prospects of success on rehearing than was originally applied. The claimant should not be penalised because he was denied a hearing first time round.

THE PROPOSALS TO RESTRICT THE HIGH COURT JUDGE'S DISCRETION

  18.  The present proposals seek to define in advance the circumstances where public funding may be granted by a High Court judge and to straightjacket the High Court judge's ability to determine in the circumstances of the particular case whether payment should be made for a case which albeit unsuccessful, was reasonably, competently, and honestly brought. The Lord Chancellor indicated to Parliament that High Court judges "would be able to order legal aid to be paid if they consider there are exceptional circumstances". (HL Committee, 4 May 2004, Col 998). That is inconsistent with the proposed regulations limiting the judge's power to allow costs if he considers that exceptional circumstances exist.

  19.  If the DCA accepts that the aim is a "no merit, no fee" system rather than a "no win, no fee" system, then it is essential that the High Court judge is not prohibited from awarding costs in circumstances where he concludes that the application was properly brought, finely balanced and/or there are exceptional circumstances why funding should be awarded.

  20.  Apart from the experience and expertise that a High Court judge will bring to bear, he has the advantage of considering costs at the point when the application has been made, rather than the far more challenging, complex and controversial exercise required of the AIT of putting itself in the shoes of the practitioner advising on the High Court proceedings at some previous point in time and seeking to exclude hindsight in determining whether the application was reasonably brought in light of what was known at the time.

RATES OF REMUNERATION AND THE PROPOSED RISK PREMIUM

  21.  The Lord Chancellor indicated to Parliament that to address the adverse impact of the scheme on the availability of competent practitioners, a risk premium would be paid over and above present rates. Any prospect that a risk premium might mitigate the effect of the scheme would depend upon the premium being realistically calculated to meet the "risk". The proposed premium of 25% is significantly below the average uplift in CFA cases and does not properly reflect the risks involved.

  22.  During pre-consultation meetings, there was no suggestion that the hourly rates presently paid for High Court statutory review proceedings would be reduced before applying the risk premium. To do so would be absurd. It would both negate the effect of the risk premium and undermine the basis upon which the scheme was presented to Parliament.

  23.  There was in any event no suggestion of any particular concern about barristers' costs on review to the High Court (which costs constitute the greater proportion of the total costs of an application drafted by counsel).

  24.  The Bar Council was therefore profoundly surprised and concerned to find in the DCA's consultation document a reference to High Court proceedings being funded through CLR rather than being funded as licensed work as is presently the case with statutory review and all other publicly funded judicial review proceedings. Drafting review applications to the High Court is essentially judicial review drafting, requiring the same knowledge of public law and the same drafting expertise, and there is no basis whatsoever to fund it differently from other judicial review work.

  25.  Standard CLR preparation rates are often less than half that charged by experienced practitioners on judicial review and statutory review to the High Court. The effect of moving to standard CLR fees would be that the proposed 25% "uplift" is applied only after cutting the basic hourly rate in half. Any move to reduce barristers' present hourly rates before applying the risk premium would conflict with the representations made by the Lord Chancellor to Parliament concerning payment of a premium.

  26.  The Bar Council therefore welcomes the clear assurance that has been provided to it in meetings with the DCA and LSC that this bizarre result was unintended and that there will be no move to reduce present fees on High Court proceedings before applying the risk premium.

  27.  It is entirely unnecessary to fund High Court proceedings by CLR rather than the present arrangements simply to permit for retrospective application of the merits test (which the Bar Council was told was the thinking behind the suggestion in the consultation paper). This could be achieved quite straightforwardly in relation to licensed work. The present funding arrangements for assessment of fees in respect of licensed work are tried and tested, and as indicated above, no concern has been raised about their operation. The Bar Council has indicated that it is happy to work with the LSC on ways of avoiding the upheaval of seeking to create an equivalent assessment system under CLR.

`RISK-SHARING'

  28.  It is plainly correct that disbursements should be paid in any event to those who do not have an opportunity under the proposals to make an assessment of the prospects of success. This should extend to all disbursements (subject to the reasonableness of the disbursement). There is no justification for limiting the principle to interpreters and experts.

  29.  The Bar Council understands that the DCA and LSC accept that fairness and economic practicalities require that fees for lawyers are also not put at risk without the practitioner having a reasonable (and reasonably funded) opportunity to assess what the prospects of success actually are. That was a key plank in the DCA's argument that the scheme was economically viable for barristers. It requires that funding be set at a level which properly reflects the anxious scrutiny that any barrister would have to give to such an assessment in human rights cases of such overwhelming importance to the client. The Bar Council is concerned that the LSC's proposals on fees for assessing the merits do not indicate adequate regard for this principle.

  30.  Advising on the merits involves both an assessment of the ultimate prospects of success of the appeal on rehearing and predicting whether a High Court judge will identify a potential error of law. The former is insufficient without the latter. The latter requires a sound understanding of public law and practice and judicial review in particular. The person responsible for drafting the application to the High Court will ordinarily be the appropriate person to assess the merits. There is no reason in the public interest for directing the funding elsewhere.

REVIEW OF FUNDING DECISIONS

  31.  A decision to disallow costs has substantial implications both in an immediate economic sense and in a longer term professional sense. As with the wasted costs jurisdiction, there must be a proper opportunity to be heard. It may be impossible to decide the review fairly without an oral hearing.

  32.  The proposal in the consultation paper is that the AIT will review its own decision. While it may be useful to enable the original decision maker to reconsider his own decision, it is patently unsatisfactory that the only form of appeal on such important matters should be to the decision maker whose decision is the subject of the appeal.

  33.  The absence of an appropriate appeal mechanism is likely to lead to a proliferation of judicial review applications. The Bar Council understands that it is proposed that the President of the AIT will handle all such applications personally. That raises particular problems if he was personally involved in the original decision to disallow costs.

  34.  Any practitioner—solicitor or barrister—whose costs are disallowed should have a right to apply for a review. As with the wasted costs jurisdiction, different issues may be raised in review applications by the solicitor and barrister. Only one may wish to seek a review or they may wish to advance different grounds.

  35.  In order for the right of review to be effective, written reasons must be given for disallowing costs, sufficient to let the practitioner know why his costs were disallowed and to make appropriate representations in the review. That will be especially important if the AIT is proposing disallowing counsel's costs of High Court proceedings where counsel was not subsequently instructed in the rehearing before the AIT.

  36.  A barrister can only determine the prospects of success on the information and evidence contained in his brief (and any knowledge of the case gained through any previous involvement). He must be judged on that basis. In assessing the barrister's decision, regard must be had to the barrister's obligations under the Code of Conduct which states that:

    Whether or not the relation of counsel and client continues a barrister must preserve the confidentiality of the lay client's affairs and must not without the prior consent of the lay client or as permitted by law lend or reveal the contents of the papers in any instructions to or communicate to any third person . . . information which has been entrusted to him in confidence or use such information to the lay client's detriment or to his own or another client's advantage. (para 702, emphasis added)

  37.  In relation to the LSC, there is a statutory exception to the duty of confidentiality set out in the Code in part so that clear and accurate information can be provided in respect of the assessment of the merits. No such statutory exception is proposed for the present proceedings. The Bar Council would not support one. There are good reasons for rules of client confidentiality and to create an exception would be particularly unwelcome in the present context where it would lead to confidential information being provided to the same body as determined the client's substantive appeal as opposed to a separate funding body.

  38.  However, as with the wasted costs jurisdiction, fairness will require that a judge or the AIT do not draw adverse inferences in respect of a failure to address allegations where the obligations of client confidentiality under the Code of Conduct prohibit the barrister from addressing them properly.

The Bar Council

January 2005





 
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