Evidence submitted by Justice
1. JUSTICE is an all-party organisation dedicated
to advancing justice, human rights and the rule of law with a
membership of 1,600, largely lawyers.
2. We understand that this consultation
relates to regulations to bring into force the provisions of s103D
Nationality, Immigration and Asylum Act 2002 as inserted by the
Asylum and Immigration (Treatment of Claimants) Act 2004.
3. We should state that we consider the
Government ill-advised to implement the policy contained in the
new section because the effect:
— conflicts with the general structure
of decision-making on merits under Community Legal Service;
— involves retrospective decision-making
which is likely to prove inappropriately intimidatory to claimants
and their representatives;
— directly conflicts with policies
advanced by the Government in relation to decision-making by other
courts;
— is an example of poor governance;
— seeks to implement a policy which
could be achieved by other means.
4. We note also that it is extremely difficult
to analyse the "chilling" or intimidatory effect properly
because the consultation document indicates that a "risk
premium" will be added "to mitigate the risk associated
with taking forward review and reconsideration work under the
new scheme". This introduces a totally new element into legal
aid funding, the effect of which cannot be judged because the
document does not indicate what the risk premium will be.
5. The general policy over several years
of the Legal Services Commission and the Department of Constitutional
Affairs has been to develop a contracting system that guarantees
the quality and integrity of providers of service. This has provided
a variety of ways in which quality can be assessed and decisions
taken on providers in consequence. The Commission is, thus, progressively
removing poor performing providers and seeking to identify a core
of "preferred suppliers" with which it can work.
6. In furtherance of this objective, the
Commission and the DCA have recently argued that responsibility
for decision-making over the merits of criminal cases should be
transferred to the commission from the courts. In relation to
criminal matters, the DCA recently advanced an argument in terms
diametrically opposite to those in the current consultation paper:
This change is proposed as part of a raft of measures
aimed at gaining better control over grant because expenditure
on criminal representation has been increasing in a seemingly
uncontrolled manner. One of the reasons for the increase has been
the apparent willingness of courts . . . to grant representation
orders. [36]
7. The DCA position in this paper creates
a difficulty. It would seem that its view of magistrates is that
they have considerably more independence of judgement than the
DCA accepts is reasonable. However, having reformed the immigration
appellate structure, the DCA seems more confident that its tribunals
will come to decisions less at variance with its own views. This
could be portrayed as implying that it sees them as rather less
independent.
8. The paper proposes quite specifically
that neither claimants nor their lawyers will know whether payment
will be forthcoming until a decision has been made by a tribunal
after the hearing of review and reconsideration. The purpose:
Is intended to encourage lawyers throughout the profession
to rigorously assess the merits of a case before deciding to pursue
it, which will in turn reduce the volume of weak applications.
9. These proposals might reasonably be portrayed
as "a sledgehammer to crack a nut" and more about public
presentation than proper policy. The commission has the mechanisms
to control quality and to monitor performance: it could be relied
upon to exercise these properly and simply—and appropriately—to
say that it would penalise firms which advanced cases that were
inappropriate.
10. Furthermore, the payment of a risk supplement,
mirroring the position under conditional fees, means that, in
time, the LSC could be left with a higher net payment of fees
than would be the case if it properly monitored the actions of
its suppliers.
11. The structure of the proposed arrangements
is, therefore, poor. If the DCA seriously believed that this was
the way to proceed, why is the method of retrospective decision
applied throughout the Community Legal Service scheme? If firms
conducting asylum work are operating inappropriately, why does
the commission not properly carry out its responsibilities for
ensuring that the scheme is working properly? Why is a potentially
penalising provision being introduced when the same objective
could be achieved more conventionally and effectively?
QUESTIONS AS
ASKED
Q1: Are the exemption categories appropriate?
12. No. This is legislative posturing. See
above.
Q2: Do you agree with the proposed transitional
arrangements?
13. Yes if the scheme is to be proceeded
with.
Q3: Which of the two options provided best
achieves the aim of the new scheme?
14. Both of these options are likely to
lead to extensive litigation. It would be far better to accept
a general test of "reasonableness". That, after all,
is the essential question—was it reasonable to take the
case or not?
15. In any event, any test should make it
clear that it is to be applied to the circumstances as they appeared
to the lawyer at the time that the decision was made and on the
instructions s/he was given by his/her client.
16. Of the two options, the first is less
draconian than the second. Both are unsatisfactory for the reasons
above.
Q4: Are there any practical difficulties?
17. Yes. The tribunal will be making an
ex post facto decision on a set of circumstances of some difficulty.
Q5: Should any additional circumstances in
which the Administrative Court may award funded by added to the
regulations?
18. Regulation 6(3)(b) should be amended
to read:
the court is satisfied that, at the time of making
the application it was reasonably arguable that the Tribunal made
an error of law and that the appeal would be allowed upon reconsideration.
The test is quite properly "reasonableness".
If the application was unreasonable, then it should not be taken.
The problem with any other wording is that it presupposes a class
of cases which were reasonable to take and where, logically, any
criticism of that decision would be inherently unreasonable.
Q6: Do you agree with the proposed arrangements
for review?
19. No. The test should be a reasonable
one, as above. It should be open for a provider to request an
oral hearing. The proposals are far too defensive. It would be
perfectly appropriate for the commission to take note of the percentage
of successful applications in determining whether a supplier was
meeting appropriate quality standards. This is its general approach
elsewhere.
Q7: Should there be a time limit for making
a review application?
20. There seems little objection to an appropriate
time limit.
Q8: Should barristers have a right to apply
for a review of a funding decision independently of a solicitor?
21. Yes. This will expose the unworkability
of this proposed scheme. The tribunal will be required to make
a retrospective judgement on what was known to barrister and solicitor.
This will be hopelessly complicated.
Q9: Are the new arrangements for risk-sharing
appropriate, given the aims of the new legal aid arrangements?
22. No. If the government thinks this is
the way to proceed then it should apply these arrangements to
the whole legal aid scheme. If it wishes to do that, then the
appropriate way of doing so is through the fundamental legal aid
review due to report early next year. This is ad hoc legislation
without regard to principle or practice.
Q10: Would a risk premium ensure that this
work is cost effective for suppliers?
23. The proposal for a risk premium exposes
the absurdity of these proposals. They could end up costing the
LSC more money than current arrangements. It would be better to
keep payment at one rate and deal with quality properly.
Q11: Are the proposals for the treatment
of disbursements appropriate?
24. Payment for disbursements should be
unavoidable and this exposes the unwarranted complication of these
proposals.
Q12: Do you agree with the suggested amendments
to the CLS regulations and the Funding Code criteria and procedures?
25. No.
Roger Smith
Justice
December 2004
36 Department of Constitutional Affairs Consultation
Paper: Draft Criminal Defence Service Bill, Cm 6194, May
2004, para 40 Back
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