Examination of Witness (Questions 64-79)
BARONESS ASHTON
OF UPHOLLAND
1 MARCH 2005
Q64 Chairman: Good morning, Baroness
Ashton, and welcome. We have a rather complicated morning before
us because we have a gear change from asylum appeals to SIAC and
special advocates and a change of minister at that point. You
will be quite relieved to go at that stage.
Baroness Ashton of Upholland:
I am the warm up act!
Chairman: Sometimes the warm up acts
are better than the main act. Are there any interests to be declared?
Mr Cranston: I am a barrister and Recorder.
Keith Vaz: I am a non-practising barrister
and my wife holds a judicial appointment.
Mr Clappison: I am a non-practising barrister.
Q65 Chairman: Baroness Ashton, what do
you think the effect is going to be of introducing retrospective
funding on the provision of legal advice for potential appellants,
both the quality of advice and the quantity?
Baroness Ashton of Upholland:
My inspiration for the changes that we have made is that what
we will do is take out of the system the disincentive to consider
very carefully whether an application should go forward for a
further appeal and enable public money to be used more effectively
to support those who have genuine claims to ensure that we do
the right thing by those people.
Q66 Chairman: You are not doing this
in any other area of law, and there are problems with unmeritorious
claims and the legal aid budget is under severe pressure. Why
have you singled out immigration for this treatment?
Baroness Ashton of Upholland:
I think when you look at any system you have to determine what
about that system you need to examine and perhaps rectify, and
it seems to me (and I am not a lawyer so I perhaps look at this
from a different perspective) that in management what you examine
with a system is what is it that incentivises people to behave
in particular ways? It is quite obvious that if you are an applicant,
whether you have merit or not, there is no incentive, if you want
to stay in this country, for you to withdraw from the system but
rather to continue; and so we have to look at how do you examine
that system in a way that says we want to make sure that we incentivise
properly the system to operate to the benefit of those who have
cases with merit. Therefore the obvious thing for us to do is
to incentivise in a sense around the supplier end to enable the
right kind of cases to go forward. It is a very specific decision
for a very specific problem and a very specific part of the system.
Q67 Chairman: Those incentives are not
unique to immigration. We are looking at family justice at the
moment, and sometimes it might appear to be in the interests of
the resident parent to protract proceedings until the court can
no longer reasonably change the situation, so it is not unique
to immigration.
Baroness Ashton of Upholland:
No, but the solutions can be unique. If you look at the family
system, what we have been trying to do, because the resident parent
is interested perhaps in preventing the child from seeing the
non-resident parent, and so on—we discussed this in the
Committee not very long ago—the issue for how do you make
sure the system works effectively will be how do you make sure
the court has power to make sure that the child sees the non-resident
parent appropriately. It is horses for courses. It is appropriate
for the system; it is certainly looking at what the issue and
the problem is and incentivising or disincentivising the system
appropriately.
Q68 Mr Cranston: Could I ask you about
the comparison with no win no fee, because I think in a way the
Department has resisted that analogy, but is it not very much
like no win no fee because if you do not get there successfully
in terms of the appeal, and so on, you are not likely to get your
expenses?
Baroness Ashton of Upholland:
As you know, Mr Cranston, the test we have provided is a significant
prospect of success to go through what we are calling the filter
mechanism, and we have built into the end of that process the
opportunity for the judge who has heard the case to look again
to see whether the application had been properly made, whether
on the basis of the evidence put forward, indeed, the filter had
worked appropriately, and then to award. Obviously a case, if
successful, will be paid. I do anticipate that there will be cases
that are not successful that will also receive their money, and
that is quite different in no win no fee.
Q69 Mr Cranston: The difficulty is that
in most cases, well generally, if you are successful at the appeal,
even though the case might be sent back and you are not successful,
you do get your expenses, is the clerical term, but here it is
different because you might be successful, it goes back, it is
not successful and you may well not be paid? There is that difference.
Why the difference between the ordinary way of lawyers getting
paid?
Baroness Ashton of Upholland:
I think to ensure that what is put forward at the filter stage
is all the information and that it is all the right information
and it is done to the highest possible standard. I do not think
there is anything wrong with saying at the end of the case it
is appropriate for the judge to look back and say, "Was all
that done properly?", in which case, of course, payment would
be made.
Q70 Mr Cranston: Yes; I guess the problem
is the analogy. Normally, if you are successful first time round
on the appeal, you get paid. It does not matter what happens later
on.
Baroness Ashton of Upholland:
I accept that, but I think what I am trying to argue, and again,
as a non lawyer perhaps if I look at it in other aspects of life,
when you are trying to design a system to get the best from that
system, if you make sure that what is put forward as being evidence
for why this should be reviewed again, at the end of that process
the person in charge of that process, in a sense the judge, says,
"Yes, actually it was", and payment is made. It is not
no win no fee, but it does perhaps discourage any possibility
that someone might not put all the information forward at the
time or perhaps put it forward in a particular way.
Q71 Mr Cranston: I do not want to put
ideas in your head, but if this is a good idea, why not apply
it to other cases as well? In other words, you have to look at
the total process and you have to make a global assessment of
whether or not the case should ever have been brought. Why just
use it here?
Baroness Ashton of Upholland:
I think what we are trying to do here is to look at a very particular
problem, which another committee has looked at before, about how
do you in this particular part of the legal system make sure that
cases with merit are dealt with properly and people who should
be granted asylum or indefinite leave to stay get it and those
cases that do not have merit are dealt with swiftly and the results
of that are followed through, which I know is something you have
also been interested in to make sure it does happen. You have
to design a system that is going to give you the best possible
outcome in fairness and justice but also to ensure that that does
happen, and, as I have already indicated, when I looked at this—because
I have only had this portfolio for a short time—I thought
what was very interesting was that again you look at why would
somebody give up. If an applicant wishes to stay here, that is
what they have come to do, there is no incentive in any event
for them to want to do anything other than push forward, so you
have to look at what is the quality of advice and what is the
best way of making sure that where that has merit, the supplier
and the applicant working together to provide that, that information
goes through to the courts, is dealt with appropriately, good
suppliers operating very well under the new accreditation system,
and so on, will have nothing to fear from this because if they
get through the filter they will know they have put forward a
good case, they will themselves know that they have put that forward
with all the evidence available and they will know the judge will
look at that appropriately.
Q72 Mr Cranston: Of course there are
all sorts of explanations as to why it might ultimately fail and
it might not have anything to do with the fact that all the information
is there?
Baroness Ashton of Upholland:
Well, indeed, and I am sure the judge will act appropriately.
Q73 Mr Cranston: Anyway we can argue
about this all day. Could I take you to the statistics? You were
very helpful here, because you produced the evidence that said
that `5% of appeals to the IAT were allowed outright, 34% were
dismissed, and then you followed with 44%, you did a sample of
that to see how there was ultimate success. I guess the analogy
here might be with areas like, for example, criminal appeals,
not on sentence but on conviction, where the success rate is very,
very low. It is 11% or something like that, I think. There, if
you are successful or unsuccessful, if you put the case you are
still going to get paid, the lawyers are still going to be paid,
but here you are adopting a different approach and you are using
the argument that not many cases are successful. Why the difference
here? Why the difference between, again, immigration and the example
I gave, crime?
Baroness Ashton of Upholland:
We looked at the statistics for the number of permissions that
were granted, and, as you know from the figures I gave you, 67%
of applications are not successful at the permission stage, but
the amount of work, energy, time, effort and that equates inevitably
to public money that is spent in that process was in need of re-examination;
so the big question was how do we make sure that the cases that
are coming forward for permission to go forward have significant
prospects of success, do have merit, are done for the right reasons?
Again, I go back to the fact that the incentive for the individual
is to continue through the process making sure that was done effectively.
Those statistics, I think, were the most stark for me when I looked
at this policy area in terms of saying how do we make sure that
those cases that go forward for permission do so because they
do have real merit, and that is where the filter comes into play.
Q74 Mr Cranston: But you get the difference
with crime. Only 10 or 11% are successful, so why treat this differently?
It is the same sort of argument as previously. In your analysis
there will be a very low success rate, nonetheless the ordinary
rules apply in terms of lawyers being paid?
Baroness Ashton of Upholland:
It is very hard for me to make the analogy across to criminal
law because, not being a lawyer and not being responsible for
that area of policy, I do not know why the system is designed
in the way it is. I am sure there are very good reasons why it
is designed in the way it is. My role is taking over the policies
to re-examine what we are proposing in this particular area, and
it seems to me that there is a real opportunity to make sure that
we not only act fairly and properly by those applicants with genuine
cause but also by the public purse, and that enables us to use
resources more wisely, and that is always the balance that one
makes.
Q75 Mr Cranston: I wonder what success
rate would you want to see before you applied the ordinary rules
about the payment of legal aid in this area?
Baroness Ashton of Upholland:
I do not have a figure, and I am very reluctant ever to say success
for me is `x'. I think success for me will be that an applicant
with merit goes through the system in a much shorter timescale
than the current 65 weeks. We are hoping for something like 32
weeks, if it works well possibly 36 weeks if you have a high court
part to that, so people get the decisions made properly for them
in a much better timescale, six to seven months.
Q76 Chairman: How many weeks?
Baroness Ashton of Upholland:
Currently it is about 65 weeks, and the ambition is about 32 weeks
or 36 if we have got a high court part of that, which for the
applicant is much better. I want to see cases going through more
speedily, less of the remittance scheme which is where cases seem
to go through a bit of a revolving door, to be honest, a better
way of making sure that those with cases which have merit are
dealt with swiftly and also that for those people where they do
not have merit their situation is brought to an end in terms of
this process as swiftly as possible so they are also not told
they are going to get something they are not going to get.
Q77 Mr Cranston: But in terms of the
success rate, you do not want to say what figure you want?
Baroness Ashton of Upholland:
I have not put a figure on it, no. It does not mean I will not
eventually, but one of the things I was very keen to do is to
make sure we had all the elements in place to look at what the
consultation told us, to continue to talk to our partners—whether
that is in the CAB or within the Refugee Legal Centre and so on—and
then begin to examine how the system starts once the transition
period is over, and then perhaps to be clear. So it is not a reluctance
to nail my colours to the mast, I just do not think I am in a
position to give you something that would be meaningful.
Q78 Peter Bottomley: Working it backwards,
if the suggestion is that successful cases have a 35% uplift,
it means that for a lawyer to come out on balance they have to
accurately calculate a 76.5% chance of being successful. I think
the Department by picking this 35% suggested uplift figure is
giving the figure which you have not been able to give us?
Baroness Ashton of Upholland:
That is very kind of you to work that out. The 35% uplift, as
you know, comes from the consultation. People felt 25% was too
low, and we accept that totally. When you talk about 76.5%, I
thought the most interesting piece of evidence that you had for
me was the success rate around the Refugee Legal Centre which
is 70%, and how close they were to a figure that would, I think,
be very good, but it is not that I look at it in terms of how
do the lawyers do as well as they do now. I think it is much more
for me in terms of making sure that cases that go forward for
the applicant have merit and that we get to a point of fewer and
fewer cases that clearly do not have any merit. There will always
be those on the borderline—I completely accept that—and
there will be cases that go to the filter which are rejected where
it is all they have to make but where you would expect to see
that number increase substantially.
Q79 Peter Bottomley: Can I just assert,
in an interrogative way if you chose to take it that way, that
if a very competent group of representatives, whether the Refugee
Legal Centre or a specialist firm of lawyers, take on cases and
get more than the 70% "success" rate, a 35% uplift still
has them losing money?
Baroness Ashton of Upholland:
You can assert that. I think if you look at the way that the figures
have been calculated what you have is that for the actual time
that they spend doing the case they could be better off, for the
time they spend preparing the case they might be slightly worse
off and that we have allowed within the monies that we have available
for the LSC the opportunity that, if senior counsel were needed
for a case because it was felt to be very complex, there is the
opportunity to ask for more money. I do not think in the grand
scheme of things that if you look at the resources that we have
put into this that firms or indeed the Refugee Legal Centre or
others need be worse off. What I have already committed to, and
I will do so, is to keep this under review in any event, but the
35% we felt was a good way of demonstrating that we were serious
about making sure they were resourced properly but also to keep
the door open for those complex cases where you might need more
senior people who would expect to be paid at a higher rate.
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