Examination of Witnesses (Questions 1-19)
ROGER SMITH
AND EMMA
SAUNDERS
9 FEBRUARY 2005
Chairman: Mr Smith, Director of JUSTICE,
it is very nice to see you again. Ms Saunders, from the Refugee
Centre, it is very good to have you with us. There might be at
least one interest to declare.
Ross Cranston: I am a barrister and recorder.
Q1 Chairman: We have been doing some
work on this issue for some time and things are coming to a crunch.
An announcement from the Government could be upon us any day.
We are therefore quite anxious to get at what has been a moving
target. Perhaps we could start by establishing what in your view
are the advantages and disadvantages of retrospective funding
for applicants challenging decisions of the Asylum Immigration
Tribunal?
Roger Smith: I think there are
three potential problems with these proposals as a whole and retrospectivity
is at the core of them. First of all, it seems to me little short
of bizarre that in this tiny corner of the Legal Aid scheme—a
scheme which to both parties' credit has been in the process of
a significant reform which you can date back to probably the mid-Eighties
and which has been relatively coherent about establishing quality
standards and establishing contracting—we now have, and
I do not particularly like it, in the criminal area experiments
with competitive tendering on the basis of a quality floor and
notional preferred suppliers whose quality is safely assured to
the providers. Although politically charged, you have the announcement
of a totally different regime which is completely out-of-sync
with what is going on elsewhere and does not really make sense
with what is happening elsewhere and with the general trend of
policy. Secondly, you are MPs, you will know that asylum is a
major political issue and you will have your own views on substantive
asylum provisions and whether they should be tightened or not.
However, what is happening here is really somewhat sinister because
what you are getting are provisions which could be construed and
might well be intended to be chilling and intimidatory of the
professionals who are acting for clients. It seems to me perfectly
proper for a Government to say it wants to tighten the appeals
system, it is properly proper for the Government to have a public
debate about asylum law as a whole, but it is improper to put
improper barriers to the rights of individuals to appeal through
such procedures as there be. Thirdly, I think there is a final
concern which links with a wider picture that you will be very
much concerned with as the Constitutional Affairs Committee, which
is that as the Constitutional Affairs Department builds its momentum
and builds its identity to what extent does it remain the champion
of justice, that was the Lord Chancellor and his Department and
to what extent are we seeing it recasting itself as the handmaiden
of the Home Office?
Q2 Chairman: Why do you think this is
being done in this particular area of law? Is it because there
are more cases without merit in this particular area of law, asylum
and immigration? Is it because of the political significance of
the issue that you mentioned earlier? Is it a stalking horse for
the introduction of this kind of thing much more widely across
the Legal Aid provision? What do you think?
Roger Smith: It is bizarre if
it is a stalking horse because it is completely contrary to the
rest of the way policy goes. I think you could take two different
views. You could say, like the Criminal Defence Service Bill that
you looked at previously, this is another example of short-term
shoddy policy making by a department that shows it is not really
up to the task and cannot hold to a long-term look at development
of Legal Aid policy, although it keeps on saying it is and promises
a fundamental review. It is noticeable that after your report
and other comment the Criminal Services Bill was significantly
revised and ended up in the form that it should have been presented
in. Secondly, you could take a conspiracy-type view, which is
that the word has gone out that this is an unpopular group and
let us get asylum seekers any which way. I would not choose between
the two, both are pretty unattractive.
Emma Saunders: The Refugee Legal
Centre would certainly not agree with the proposition that there
is a problem with unmeritorious appeals. We forwarded to the Committee
some of our statistics. If we are looking at higher level appeals
here from initial adjudicator decisions, I think our statistics
show that we enjoy significant levels of success in that I think
some 70% of our applications for leave are granted. So when challenging
those initial adjudicator decisions as arguably flawed for error
of law 70% of the applications are granted. That is double the
national average. We would say the reason that there is this discrepancy
is that there is increasingly a shortage of good quality providers
and when an individual does have a quality provider, such as the
RLC, the results are clear. There are a lot of very meritorious
cases that we see still without representation that we are not
able to accept ourselves, we do turn people away. We would certainly
take issue with the notion that this is a system that is being
abused by appellants in any significant way at all.
Q3 Chairman: You are not saying that
nobody abuses the system or pushes the appeal system beyond the
limit of what might be thought objectively reasonable, are you?
Emma Saunders: The word abuse
is a highly charged one. The system at present only allows individuals
to go further if they are granted permission to do so. I think
this point was made very well by Mr Justice Ouseley when he gave
evidence before you in the context of the last Bill.[1]
By definition, if a case is granted permission for it to be taken
higher it cannot be seen as abusive. Going back to our statistics,
if 70% of applications that are submitted by us as a good provider
are granted there are 30% that are unsuccessful, but I do not
think that could be argued as abusive.
Q4 Chairman: Is there not a further factor
in the assumption in that the longer you are here the less likely
you are ever to be removed and therefore if you can pursue the
case through the legal system for as long as possible you are
thereby, even if you lose, enhancing your chances of staying?
Emma Saunders: It is very important
to state that no representative can pursue a case that is hopeless
through the system. As it stands at the moment there are stringent
checks and balances and not least there are professional obligations
on the part of professionals, so cases have to be continually
subjected to a merit scrutiny as they proceed through the process.
For example, if there is a political about-turn in the country
of origin that renders a case unarguable a good representative
would be under a professional obligation to advise they could
no longer represent. So it is certainly not the practice of any
good provider to spin out cases because quite simply professionally
it is anathema for them to do so. As to there being a very small
minority doing so, obviously it is outside my immediate knowledge
because, as I say, that is simply not how we work.
Q5 Ross Cranston: I guess that figure
is quite striking, is it not? Okay, fine, you get 70% in terms
of your applications for permission, but if the national average
is 35% and you are running a practice with conditional fees, you
would be out of business, would you not?
Emma Saunders: I am sorry, do
you m ean us as the Refugee Legal Centre?
Q6 Ross Cranston: No. If that is the
national average and you are only going to win 35% of cases, you
are in real trouble.
Emma Saunders: The Refugee Legal
Centre, even on a 70% analysis, would be in real trouble as I
think we have endeavoured to set out before you. The concern of
the organisation is that we regularly see people who have been
badly let down by representatives. So I would not accept that
35%, although it is not particularly high, is necessarily reflective
of the quality of cases. It is a very real concern that people
are being let down by perhaps mediocre advice or just simply insufficient
advice.
Q7 Ross Cranston: And that is after all
the steps taken by the Law Society and so on to try to increase
the quality.
Emma Saunders: The Accreditation
Scheme is a very new proposal. I think it is fair to say it would
be impossible to gauge its success yet.
Q8 Peter Bottomley: If there were a 25%
risk premium on a 70% success rate you will still get back less
than 100% of your costs, will you not?
Emma Saunders: Yes, quite significantly
less. It is a slightly complicated analysis and I will not go
through it now, but if there is any aspect of our statistics that
is unclear I would be happy to clarify it later on.
Q9 Peter Bottomley: For the record, if
you have more than a two-thirds success rate with a 25% risk premium
you cannot get back all your costs, can you?
Emma Saunders: No.
Q10 Ross Cranston: I was going to ask
you about the analogy of conditional fee agreements because you
say in your submission that you do not think that that is the
proper analogy, but even under the Government's proposals you
are sometimes going to get your costs and you are sometimes going
to be paid even though you have not won. So there is not a strict
analogy, is there, between conditional fee agreements?
Emma Saunders: Our reading of
the regulations that are proposed under the Statute is such that
it would be an exceptional case that does not win and that is
granted funding.
Q11 Ross Cranston: If it was a generous
test and let us say you go into the High Court and you are then
sent back to the adjudicator who says, "Sorry, you're not
going to win", you can still get paid, can you not? Even
though you lose, you are not excluded from being paid as long
as you meet the test, are you?
Emma Saunders: Yes, assuming the
test is a fair one. This is even assuming that conditional fees
are a good idea.
Q12 Ross Cranston: The test is quite
a high test.
Emma Saunders: Yes.
Q13 Ross Cranston: There are the two
options, but what would be the appropriate test in your view?
Would it be the existing 50:50 test?
Emma Saunders: I think it should
mirror the CLR test under Legal Aid. I think it is quite important
for the Committee to think through the process and the way it
will operate and the point at which the costs penalty comes in.
Let us say you have an appellant who has a hearing before an adjudicator
and the adjudicator quite simply gets it wrong. In arguing that
there is an error of law one would hope that one would get to
the next hurdle of a reconsideration hearing. Assuming that the
adjudicator decision was not salvageable, as is the case with
many cases that are remitted, that individual has effectively
been denied a first fair hearing and at the reconsideration stage
it is proposed that they would then have their case heard afresh
as they should have had in the first place. Why is it that an
individual who has been failed by the system at that very first
instance level should not be put back into the position Parliament
intended them to be, ie that there should be proper scrutiny of
a case raising important human rights issues? What it will mean
is that you are denied a first fair hearing, but unless you can
state your case as an absolute certainty you are not given redress,
you are not given the opportunity to have that first fair hearing
again.
Q14 Ross Cranston: I think we could argue
about that. Mistakes are made and that happens in all areas of
justice. You might argue in this area it has more significant
ramifications. Let us say we did not make an exception in this
area, we just operated in the normal way but we imposed the sort
of significant prospect of success test, would that be acceptable?
Emma Saunders: We would have very
real concerns that it is just ill-suited to this area of justice.
It is very difficult for providers to assess at the outset the
prospects of success in a case that usually hinges on the uncorroborated
testimony of very vulnerable individuals. Quite often that vulnerability
will render them not very good witnesses in a conventional sense.
It is very rare that there are other witnesses to back them up.
It is very rare that there is additional objective evidence other
than an analysis of general country conditions. Providers should
not be forced into predicting out-comes of success, as at the
moment they are not required to do so: it is entirely right given
what is at stake and given the difficulty of predicting when you
have such a vulnerable evidential base on which to go forward.
Q15 Ross Cranston: We come back to the
35% figure. That is the thing that worries me. Say you had a prospective
test and say it was the existing 50:50 test, how does the Legal
Services Commission operate so as to avoid this figure of 35%
success? If you were stood in their shoes, how are you going to
do it? I think you made the point there are still problems in
terms of the quality of representation.
Emma Saunders: Yes. Certainly
there are some very good and very committed people and some less
committed ones. The Legal Services Commission has audit powers.
It is able to keep statistics on the success rates of individual
representatives and if there are representatives who are consistently
misjudging the likelihood of success in cases then it should target
its powers in looking at those representatives rather than sending
a cannonball into the sector.
Q16 Ross Cranston: So they have to be
tougher?
Emma Saunders: Where appropriate,
yes, because we think that the applicants themselves would benefit
if there was targeted scrutiny. If the Refugee Legal Centre is
achieving 70%, we would suggest that that probably is mirrored
in the good providers. So perhaps it is just a case of making
the less good people better.
Q17 Ross Cranston: And the 35% is only
an average.
Emma Saunders: Exactly.
Roger Smith: There are three ways
you can deal with the quality issue and I do not think anybody
would justify the taking of a case which was totally unwarranted.
You do not get Legal Aid for that under the civil scheme, you
can not get it under the criminal scheme. It seems to me that
it is a reasonable policy objective to knock out cases which are
totally unwarranted and where the lawyer involved really understands
there is no chance, indeed the client may do as well. That seems
a reasonable policy objective. There are three ways of doing that.
One is the way the civil Legal Aid traditionally did it and still
does, ie on a reasonable prospect of success and Emma is saying
that in these kinds of cases it is extremely hard to judge because
you do not know how your client is going to deliver. There are
all sorts of uncertainties about that, but you can do it on that
basis and provided you accept the difficulties of doing that,
that is only hearing one side. You also have to bear in mind that
everybody agrees that initial decision making by the Home Office
is not very good.
Q18 Chairman: We have observed that ourselves.
Roger Smith: A lot of people have
said it. I am glad that you have as well. That is acknowledged
and that is one of the root problems in this whole area, that
the Home Office have not been up to it in years. They are getting
better but they have not got there yet. You can apply the civil
Legal Aid type of test, reasonable prospects, with allowance for
the judgment you have to make as a lawyer, ie you do not hear
the other side and you do not know what is going on from their
point of view. Alternatively, you can go the way that all the
rest of civil Legal Aid policy as it was is going, which is towards
a contracted preferred supplier with a whole series of quality
criteria coming into the Commission's judgment on whether you
are a good provider or not. On that basis I have no doubt that
the Refugee Legal Centre or the other practitioners you are going
to hear from, who are well known in the field, would pass with
flying colours, and you would cut out those you might think would
be abusing the system. This is the most illogical way of doing
that because you are giving an uplift on cases which should be
taken. If this thing works perfectly it will cost the government
more, because you only get the uplift on cases which it was reasonable
to take, either because they won or it was subsequently regarded
that they were reasonable. It is not just a question of retrospectivity—and
you may be coming to this—it is also uncertainty, you just
do not know whether you are going to be paid for them and that
de-stabilises the finances, making it tricky for the RLC and making
it worse for private providers.
Q19 Ross Cranston: You do not know with
conditional fee agreements.
Roger Smith: Yes, that is right.
Conditional fee agreements raise a whole lot of other issues;
there are ethical issues about them that I think have not been
properly explored.
1 Note by witness: Second Report of Session
2003-04, Asylum and Immigration Appeals (HC 211-II), Q106ff Back
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