Select Committee on Constitutional Affairs Minutes of Evidence


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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