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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