Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by the Legal Aid Practitioners Group

1.  This is the evidence of the Legal Aid Practitioners Group to the Constitutional Affairs Committee on the DCA's proposals for retrospective funding of immigration appeals.

  2.  LAPG is an independent membership organisation representing over 800 firms that undertake legal aid work. Between one third and one half of our members do some immigration work.

  3.  The AITC Act 2004 empowers the DCA to set up a system of retrospective funding for appeals from the AIT. It does not require it to do so. We believe that this approach is contrary to the best interests of clients, practitioners and the system as a whole, and should not be pursued. We also believe that the proposals do not comply with assurances given by Ministers during the passage of the Act as to how the funding system would operate.

  4.  Under the current arrangements, in order to proceed to challenge an immigration appeal decision by way of judicial review, the solicitor has to persuade the Legal Services Commission, in accordance with its funding code, that the case has sufficient merit that it should be funded. Once the LSC has confirmed that the case has merit, the solicitor is guaranteed funding, unless it subsequently transpires that the solicitor misled the LSC, or the Court decides that the application had no merit and issues a certificate to that effect. In either such case, the solicitor will not get paid. There are therefore significant protections within the existing system to ensure that solicitors bringing inappropriate appeals are heavily penalised for doing so.

  5.  We have seen no justification for denying the solicitor an assurance of funding before work is started on a case. Private practice solicitors working in this field are running businesses, and must take sensible commercial business decisions. Those working for non-profit making organisations must still cover the costs of the organisation and cannot afford to work for nothing. Few other businesses are required to work speculatively in this manner, and those that do can generally name their own price to attach to the commercial risks of doing so. Furthermore, such organisations generally know very clearly in what circumstances they will or will not get paid. Such clarity is absent in the proposed new system.

  6.  The less harsh of the possible alternative tests being proposed under this scheme is that a case had "significant prospects of success". The current test is that a borderline case will be funded if it is of overwhelming importance to the client or raises significant human rights issues. Clearly, the vast majority of borderline asylum cases will meet this test. No case of less than borderline prospects of success meets the funding code. If such cases are being funded, then it means that the LSC is not applying the merits test properly and that Courts are not issuing certificates of no merit as robustly as they should.

  7.  Thus under the new scheme, a solicitor considering whether to assist a client will need both to apply a much more stringent test than at present and leave enough of a margin of error within the new test to ensure that he does not end up doing substantial amounts of work and not get paid for it. A significant number of cases that are properly brought under the current scheme (and therefore are not the sort of weak or improper cases that the Government rightly wishes to weed out) will not meet the merits test and will not be eligible for funding under the new arrangements.

  8.  There are further checks and balances within the system to help guard against improper appeals being brought. The LSC has taken numerous steps over the past few years to remove from the system the poor quality immigration advisers, culminating in the bid round for contracts in April 2004. From April 2005, every single person working on legally aided immigration and asylum cases must hold accreditation. The new accreditation rules provide the toughest restrictions in any field of law on who can and cannot advise clients.

  9.  One justification given by the Government for bringing in this change is that it does not want the new system to be clogged up with unmeritorious appeals. Yet, in our view, one of the likely consequences of this change is that more applications will be made by people acting in person or with the assistance of unqualified community representatives. These clients will not have the benefit of legal advice on whether the case has merit, which points should be taken, or what the procedures of the system are. In many cases, the appellants will be obliged to present their appeals through interpreters. Thus, we believe that the change will in fact have precisely the opposite effect to the Government's stated intention.

  10.  Even if the retrospective funding provision is to be brought in, we believe that the merits test currently being proposed does not comply with assurances given by Ministers during the passage of the Act. Lord Filkin said during a House of Lords debate on 6th July 2004 (Lords Hansard column 739).

    Some of the debate will turn on whether it is reasonable to put the burden on the lawyer to make a judgment about whether he should take a case to appeal. The lawyers who are making that judgment will already know the case, because, in most cases, they will have advised the applicant on legal aid when he was making his appeal to the IND. They will have advised the applicant when he made his application to the IAT. Therefore, they will know the facts and the strength of that case. Essentially, the system will be that they should be rewarded on success and that they should be rewarded on near-misses. They should be rewarded at a higher rate than would normally be the case so that they are compensated for the risk that they take, because none of us can perfectly judge which case is a winner or even which is a near miss. Our intent is not to squeeze out of the system those cases which have reasonable grounds for being argued-those cases should be brought forward. Nor is it our intention to make the legislation so stringent that a good asylum lawyer cannot make a judgment where he thinks that the case has legs and should have a hearing. If he gets that wrong, one wants him to be in a position whereby, on swings and roundabouts over time, sufficient legal aid is granted as to continue an adequate supply of lawyers. Therefore, central to our thinking is that one has to pitch the legal aid, by whatever mechanism-there could be variability in it or a debate about it—so that there is an adequate supply of lawyers who are prepared to come forward and take cases that should be taken up because they have merit. However, we have to squeeze out those cases where there are no reasonable grounds for believing that there has been an error of law on the part of the AIT and that, therefore, they justify a reconsideration.

  11.  Even on the broadest possible interpretation of Lord Filkin's words, both of the tests proposed go significantly further to exclude funding than the assurance Lord Filkin gave to the House of Lords. The proposed test would exclude all borderline cases. These are cases which have "reasonable grounds for being argued," which Lord Filkin assured the House of Lords would be funded. Both tests would also fail to guarantee payment in a case that the solicitor won, contrary to Lord Filkin's assertion that "the system will be that they should be rewarded on success." The tests as proposed have the perverse effect of penalising a lawyer who demonstrates particularly skill in winning a marginal case, while rewarding one who took forward a case with significant prospects of success but lost it.

  12.  There is also a significant problem in relation to the proposal for a success fee. At present, applications to the High Court for a review of an Immigration Appeal Tribunal decision is funded under a full legal aid certificate, which attracts a basic preparation rate of £79.50 per hour in London. This basic rate is often subject to an enhancement of as much as 100% because of the urgency and complexity of the matter, so actual rates of £159 per hour are not unusual.

  13.  Under the new scheme, High Court applications will be funded under the controlled legal representation scheme, which normally attracts a basic preparation rate of £61.20. In the Legal Services Commission consultation on the contract amendments to be made to implement the scheme, it is proposed that High Court applications should attract a rate of £76.50. So although the scheme is offering a premium of 25% over the usual rates for controlled legal representation, this actually represents a massive cut compared with the current rates. We anticipate that this aspect of the proposal will be challenged by way of judicial review as being "Wednesbury unreasonable".

  14.  We would also endorse the views of the Civil Justice Council, a statutory body headed by the Master of the Rolls and with a responsibility for making recommendations for the improvement of the civil justice system. They said at paragraph 51 of their response to the DCA consultation on this policy,

    We also query the policy of reducing or removing public funding from cases involving fundamental rights and freedoms, and instead placing the onus on practitioners to take commercial risks in conducting such cases . . . We do not consider that it is appropriate for representation of vulnerable clients regarding challenges to executive actions to be dependent upon the willingness of practitioners to take commercial risks in the same way as damages claims.

  15.  In conclusion, we do not accept that there is any need to change the funding system in order to meet the Government's stated aims. The current test, if properly applied, is clearly adequate to achieve them. We believe that the likely effect of the retrospective funding arrangements will be that more good solicitors will leave the system. Clients with reasonable but not overwhelmingly strong cases, who are presently helped quite properly, will no longer be entitled to representation; and because solicitors will need to leave a "margin of error" in their assessments of cases, they will reject some cases that properly fall within the merits test. Firms that are insufficiently severe in their application of the test may find themselves in financial difficulties when funding is refused, despite having acted competently and in good faith throughout. Some of those who cannot get representation will nonetheless appeal as litigants in person, either acting alone or with the benefit of community advisors, with little understanding of the law and procedures involved. The Court may find itself hearing poorly prepared cases of little merit presented in person by clients who do not speak English. We believe that this presents a greater risk to the smooth running of the Courts than the prospect of a few cases being brought with the benefit of legal representation that perhaps should not have been brought.

Legal Aid Practitioners Group

January 2005





 
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