Select Committee on Constitutional Affairs Minutes of Evidence


Examination of Witnesses (Questions 20-27)

ROGER SMITH AND EMMA SAUNDERS

9 FEBRUARY 2005

  Q20 Ross Cranston: They are working successfully in other areas.

  Roger Smith: That takes you to the economics of the insurance market and so on. It is almost not proper for Government, it is silly for Government to pay a premium when it does not need to do so.

  Q21 Peter Bottomley: If we can go through the stages, if someone wants to make an appeal the advice centre lawyer has to decide whether, having heard one side of the case, it is worth taking forward, and they ought to take the approach of at least is it as likely as not that it would be justice to take it forward. The second stage comes in when they get some idea of what the Home Office has to say, the other side of the case so to speak, because they are the only two places where the evidence comes from the appellant and presumably from the Home Office. Is there a stage where there is reconsideration by the adviser or lawyer representative, having heard the other side, to say we cannot take it further because the evidence is such that you cannot do it? Would it not be more sensible to have a system where you depend on reasonably experienced advisers, who are always likely to come into the field, who can actually do the first stage and the second stage and then start asking why, if it goes on, there are still more cases than not that do not succeed when the appeal is actually heard?

  Emma Saunders: I am not sure I quite understood the question.

  Q22 Peter Bottomley: The first thing we heard is that if an appellant comes to seek advice a decision has to be taken by the adviser as to whether it is worth taking on at all, and they can only do that on what they hear from the appellant because they have not necessarily got everything from the Home Office; they make a judgment, is this a runner? The second question then, when you know all that the Home Office have to say, is to make a decision, "Now we have heard all that the Home Office have to say, you have not got a chance and I am not going to do it." That, presumably, is a lower cost than actually having gone to a hearing.

  Emma Saunders: Yes. As I said earlier, we are under a contractual duty, under the terms of our contract with the Legal Services Commission to review the merits at any significant stage and in any event if there is a change of circumstances. To take your example, an individual comes in and says "I would like you to represent me in my claim for asylum"—and initially you will only have their side of the story. Once they are then served with their refusal by the Home Office that will set out the reasons for refusal. Putting to one side for the moment the quality of those decisions not being high at all, if it does raise real problems for that individual and that individual is not able to answer those, then the provider or the Refugee Legal Centre would say "We are sorry, matters have moved on, there is not merit now in pursuing this." Equally, continuing through the system, the individual goes to the hearing in front of the adjudicator and perhaps the evidence comes out differently or badly, particular points are made by the Home Office, there is even a change in circumstances, again when it comes to the higher appeals team in the Refugee Legal Centre we automatically merits-test every case at that stage to see whether or not we think it is proper to then pursue it to the higher tribunal. It should be said about 35% of cases at that point we do merits-test out, because we decide, perhaps because of the way the evidence has been at the hearing, perhaps because of a change of circumstances in the political situation, whatever it may be—

  Q23 Peter Bottomley: It is no longer a runner.

  Emma Saunders: It is no longer a runner, it would no longer be in our interest, professional or otherwise, to pursue the case.

  Q24 Chairman: You have given us quite detailed written evidence about the potential impact of this on the service that you provide. Assuming things were to go as you feel they might go, and discounting for the moment the prospect that the premium might go down to the surprising extent Mr Smith suggested, where the Government is actually losing money on the whole operation and it is costing them more, what would you as an organisation have to consider doing, if the Government went ahead with its plans as so far described?

  Emma Saunders: We would consider very carefully whether, in good conscience, we could remain within the system. If we were having to say to individuals, who we believed have a real prospect of success, having been refused by an adjudicator, that nevertheless we were not able to take the risk with our funding of representing them further, there is a five day time limit in which to refer out and our experience shows it is very difficult to refer cases out in any event once they reach higher stages because there is a shortage of good quality providers. If, ultimately, as we think to be the case, we would be leaving people high and dry, as an organisation we would have to question whether the system really was delivering justice at all and, if not, as would appear to be the case, whether we in good conscience could continue to act for people in a very partial way.

  Q25 Chairman: How would you resolve that? Would you pack up and go home or would you say we do not go beyond the appeal stage?

  Emma Saunders: That would obviously be a matter for discussion with the organisation and trustees, but it would be a very, very difficult decision to make and we would be very fearful that it would leave already increasing numbers of people who are badly served or not served at all by representatives, even more vulnerable without our services.

  Q26 Chairman: Thank you both very much, unless there is anything you especially want to add.

  Roger Smith: Just to say that with the Centre what you have got is an ultra-proper provider who is delivering a service which everybody accepts is high quality, under a contract situation, and the question to ask it seems to me is why does the Commission not get the same level of success out of its other providers. There will be particular reasons for that; other providers will act for particular communities which are more difficult and so on, but in a sense here is a provider, we accept the provider is not an abusive provider, is not swinging the system in any kind of way, you are getting a reasonable result—70% is not a bad result in any area of law, I think most lawyers would be happy with a 70% success rate just as a crude indicator of personal success—and contracts are the way to do that. That was how they had been sold to the rest of the system and you just do not need to go to the uncertainties of retrospective payment.

  Q27 Peter Bottomley: The dilemma that the Refugee Legal Centre might anticipate is essentially the same one that the Government should be facing, which is saying to someone who is more likely than not to be successful in appealing, in practice you cannot appeal. That is essentially what it comes down to, is it not?

  Emma Saunders: Yes.

  Chairman: Thank you very much indeed. We have some more witnesses and I am going to invite them to come to the table.





 
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