Examination of Witness (Questions 80-99)
BARONESS ASHTON
OF UPHOLLAND
1 MARCH 2005
Q80 Keith Vaz: If appeals are being brought
that are entirely without merit, this would appear to indicate
that the Legal Services Commission's assessment of a case's merit
is an inadequate safeguard. If so, what is the Legal Services
Commission doing in order to improve its quality control mechanism?
Baroness Ashton of Upholland:
As you know, Mr Vaz, a lot of work has gone on between the Legal
Services Commission and the suppliers, if I may call them that—it
is a very strange word, but that is what we call them apparently—to
look at ensuring, both through accreditation and other methods,
that we have good suppliers in the market place and that the LSC
does its job carefully. They are looking always quite carefully
at the systems they have in place. I think the reality is that
a lot of the cases that come to the filter will not be hopeless
and totally without merit but will not have significant prospects
of success, and that is the test that we have placed before them.
Q81 Keith Vaz: But you know that the
solicitors themselves have little confidence in the ability of
the Legal Services Commission to do this. There is a lot of criticism
over the way in which they have operated. You are aware of that,
are you?
Baroness Ashton of Upholland:
I am aware of that. I would not put it in such strong terms. I
am certainly aware of concerns, but I think the Legal Services
Commission, first of all, has a very good dialogue and relationship
with many of the solicitors, that the Law Society has done a lot
of work in talking around not only the issues connected with this
particular area of policy, but more generally we have a good and
healthy relationship with them and that the LSC and the solicitors
are continuing to talk to each other to make sure the system is
robust all the way through. I do not think I would put it as strongly
as saying that we have severe concerns, but I recognise there
are issues that they would want to see addressed.
Q82 Keith Vaz: What are your concerns
about the Home Office decision-making process? Do you have any?
Do you think it is robust?
Baroness Ashton of Upholland:
I think it becomes more robust. I think that the work that has
been done with IND in particular to develop training packages,
to make sure that issues like understanding the country of origin
of someone, all of those ways in which they have tried to make
the system more robust at the initial stages, are beginning to
show and are beginning to help the right decisions to be made
at the beginning.
Q83 Keith Vaz: Why are you not making
more of a fuss about the problems with the Home Office? This government
has made a priority about immigration and asylum, you are cutting
back on legal aid and it all starts with a decision being made
at Lunar House and Apollo House. What is your Department doing
to challenge the Home Office's assumptions?
Baroness Ashton of Upholland:
I am working with my colleague, Des Brown, because he and I work
together on this and we meet to discuss the whole process, if
I can describe it like that, from beginning to end. I have no
doubt that there is a real desire on his part and certainly on
the part of Charles Clarke to make sure that the system is robust,
that people are properly trained, that the expertise exists to
make the right decisions as smoothly and as quickly as possible
for the benefit of the individual, and what I see is that a lot
of work has gone on. We meet regularly. We also meet regularly,
as you will know, with the Prime Minister and with members of
the Foreign Office, with DFID, and so on, to examine the whole
process, including our relations with other nations.
Q84 Keith Vaz: This is exactly what your
colleague, David Lammy, said to us when I asked him the same question
a year ago—how many meetings he has had, how cosy the relationship
was, how he was having these discussions with the then minister
for immigration and she resigned three weeks later. There has
to be some progress about this, because this is where it starts,
does it not? It is not the Department's fault? Do you not feel
the Department is clearing up the mess that the Home Office is
leaving?
Baroness Ashton of Upholland:
I do not, but I read the evidence that David Lammy gave you a
year ago, which is why I was expecting this question, and, indeed,
expecting it from you, Mr Vaz.
Q85 Keith Vaz: Good. Have you got a file
on me then?
Baroness Ashton of Upholland:
Not a personal one. Part of my job, surely, is to know what areas
of interest people have on the Committee. The issue, as you quite
rightly raised, is that if the process before hand is not very
good, that is why we end up with the problems that we have. I
feel pretty confident that the issues that have been looked at
by the Home Office, and, as I said, under the guidance to some
degree of the Prime Minister who takes these issues, as you know
very seriously, is beginning to result in a more and more robust
service. There are more resources going into IND, the training
packages are working well, the information they get, the database,
and so on. You know as well as I do that you cannot change this
over night, but if I look across the whole system what I see is
intervention by government all the way through it to make sure
that proper decisions get made as early as possible, not least
for those successful applicants who should be given that decision
as quickly and as smoothly as possible and allowed to stay and
get on with their lives but also that all the way through this
process we have put in the right balances to make it run smoothly,
to use money effectively, to get the right outcomes. There is
more to do. The Home Office would be the first people, if they
were here, to say that to you, but my meetings with Des, with
the IND people there, with our officials there and the on-going
official dialogue as well have been very productive and I think
a lot of the work that he has done now with the support of Charles
Clarke, previously with the support of David Blunkett, to make
sure this area is as strong as it possibly can be is beginning
to bear fruit; it will take time.
Q86 Keith Vaz: Finally, and you will
know this question obviously because you know I am going to ask
it because you have looked at my file, a copy of which I will
request under the Freedom of Information Act—
Baroness Ashton of Upholland:
I am responsible for that too. You know that.
Q87 Keith Vaz: I know; I have got your
file! The five-year strategy was announced by the Home Secretary
last week, the week before last. No doubt you were consulted about
that strategy. What is the impact on the legal aid fund (your
department) of the changes as far as visitors' visas are concerned?
Baroness Ashton of Upholland:
Family visitors' visas?
Q88 Keith Vaz: Yes; appeal rights?
Baroness Ashton of Upholland:
I do not have that figure for you because I am still in the process
of discussing with other departments what our view is on the family
visitors' visas and the issues concerning hearings where people
are present. There is not a settled view on that yet. I have asked
for more evidence to back up the proposals at this stage because
I think there are issues about why the success rates are so different,
and also, of course, there are some people who would not be able
to present in writing because they either do not write English
or they have a disability, whether that is dyslexia or a physical
disability, or they would not be capable for other reasons of
doing that. We need to get underneath that, my proposition is,
a little bit more. We may well have that information, I just have
not had it yet, about precisely why we think that is such a big
differential and therefore to move to a system that at least recognises
what those reasons are and puts in place the support for individuals.
Q89 Keith Vaz: You know what they say
about this Government: in order to save money on immigration and
asylum the Government is prepared to restrict rights, and there
has been a lot of restriction of rights, has there not?
Baroness Ashton of Upholland:
I do not accept that. What I would say to you is that you have
to look at how you design a system that uses the best resources
in the best and most appropriate way, and sometimes that means
reviewing do we have the right systems in place. Again, I can
only talk as a non-lawyer coming at this from having worked in
the outside world for most of my career where you always review
when you see a part of your organisation, whether that is government
or anything else, that seems to have pressure points that need
addressing, and you have to think very carefully about how you
address those appropriately. If you look at the family visitor
visa question, we have a big pressure point. The consequence of
that pressure point is a knock on to anything else. We cannot
ignore it. The question then becomes: how do we best resolve it
while making sure we do not take away rights, but if there is
something happening as a consequence of more appearances in person
whereby perhaps the system could be looked at again, perhaps the
way in which we present written evidence to support visas needs
to be thought through a little bit more. However, we need to think
that through, and I have no objection to that, but I would like
a bit stronger evidence to just make sure that we have got that
completely clear in our own minds, because I am not, hence I am
not proposing this proposal at the moment.
Q90 Dr Whitehead: Where the question
of costs for solicitors and barristers comes in as far as appeals
are concerned, the Department I think has accepted that people
are essentially judged on the information that is available to
them at the time, but clearly, as far as solicitors and barristers
are concerned, there will be, as it were, a sequential issue there.
What arrangements are to be introduced which will ensure that
solicitors and barristers fairly share the risk of taking appeals?
Baroness Ashton of Upholland:
I think that partly rests in the relationship between the solicitors
and the barristers themselves, as I understand the way they work
together. What we have done—and I am not sure this answers
your question properly, but I describe it rather like my gas bill
where I pay a monthly amount and top it up when the bill comes
in or they give me some money back. The way in which the LSC are
working with the accredited firms is to sort out roughly what
they would expect to receive in the course of their work and then
to top it up or take it back at the end of that time depending,
so that you have got money in the system coming into those firms
on a regular basis and they self fund within that once they have
got their notice. The way in which they work with their own barristers
is, in part, I think, for them to organise. What we have been
very clear about are the rates that we pay, but they need to think
together about the robustness of the case that is being put forward,
and, as I have already indicated, where they do think there is
an important or complex case or a particular point of law to be
able to apply for additional funding in order to get senior counsel
to represent. I think we have covered it in a way that recognises
their own relationship and does not get in the middle of that
but also tries to provide clarity about what is available and
also the readiness to listen where someone more senior is needed.
Q91 Dr Whitehead: I was trying to work
your gas bill analogy out fully and properly. Surely the analogy
perhaps in terms of solicitors and barristers is that you might
still have to top up your gas bill even though on occasions your
gas supply had been rather dodgy?
Baroness Ashton of Upholland:
You might; I certainly would not.
Q92 Dr Whitehead: You presumably say
that your top up was not valid and you should not have that top
up requested of you if the gas supply turned out to be faulty
or dodgy. Is it not the case that if barristers had been instructed
on the basis of inadequate information should they not be in a
position separately to safeguard their position?
Baroness Ashton of Upholland:
I think that part of a barrister's job, and they do it very well—I
am conscious I am in the presence of some—is to make sure
the information they have got is appropriate and relevant to the
case they take forward. I do not think of these people as being
easily hoodwinked by anybody by any stretch of the imagination.
They are experts in their field. They are used to doing cases.
They know perfectly well what kind of information they need, and
they will choose to involve themselves in a case or not depending
on their relationship with the solicitor and the quality of the
information. I do not have any fear about that. My analogy, and
it is always dangerous when I do analogies because they always
run out on me, but certainly when a costs order is made, if there
is a differential between what the firm has received and what
they should have received by order, then it is given to them by
the LSC. The point I was making was that we tried to develop a
scheme where people get the regular sources of income in order
to get on with work, recognising that there may be fluctuations
in that work depending on how many cases they take through, depending
on their success, of course, as well.
Q93 Dr Whitehead: I think the issue,
is it not, as far as I can understand it, as it were, the costs
will be awarded on the basis of the assumption that the work is
continuous, whereas barristers and solicitors are not in the same
position and perhaps therefore should be able to appeal against
costs independently. That would obviously be appealed. The independent
appeal would be based on the information they had at the time
but that information would not always be the same. Therefore,
should they not have a mechanism to appeal independently and,
if they did, would that perhaps add to the costs of the system?
Baroness Ashton of Upholland:
Do you mean they could appeal separately to say, "Hang on
a minute, I did it on this basis"?
Q94 Dr Whitehead: Yes.
Baroness Ashton of Upholland:
I think that the way in which we have got the system is that there
would be no question that a note would be made. If a barrister
felt strongly that they had acted in good faith to present a case
that had, they believed, significant merit and during the course
of the case, for argument's sake, the information they had been
given was proven not to be correct or was, let's say, slightly
misleading—I am very conscious about not trying to accuse
the legal profession of doing that but for whatever reason—and
at the end of the day the judge said, "Actually this never
did have any significant prospect", of course the judge will
take into account the role that those have played, but frankly
that is for them to sort out, and I have no doubt that a barrister
would be perfectly capable of pleading their case to a judge who
would understand entirely the situation. However, my ambition
is that solicitors and barristers working together will be undertaking
cases that they both feel, on the basis of sound evidence, have
significant prospects, as you have described it, of success, and
I would hope that we would discourage cases where there was any
question that the information was inaccurate and that people were
acting and pushing forward. Hence, in a sense, the second stage.
Precisely what that second bit does is say, "Hang on a minute.
Did what you said in the beginning turn out to be what you said
in the end?" I do not want for any reason information not
to come forward at the beginning or to be distorted, if I can
put it like that, so I am not worried about the facts in that
context. I will, of course, be looking at it but I am not desperate
about it.
Q95 Dr Whitehead: Are you worried about
the total costs of asylum appeals and the proposed uplift, and,
if so, what sort of assessment have you undertaken?
Baroness Ashton of Upholland:
We have looked at the uplift and we have looked at the figures
that the LSC are projecting for the year ahead, and I think we
have got a decrease projected from just over 200 million to 117
million. I think the uplift is important for the reasons that
Members have indicated of making sure that we keep the supply
base sound and that we keep people wanting to take on this work,
recognising that, yes, we have added an additional risk factor,
though one that we think is a properly calculated risk, and therefore
to make sure that we reward people appropriately when they have
taken cases forward. I think it is the right balance, I think
it is a balance we should stick to and I think within the overall
ambition for this system of which, yes, of course, making sure
we use money effectively as part of it, we have got that right.
Q96 Peter Bottomley: Going back to my
previous point about the 76.5, it is actually 74%, but in case
anybody bothers to read our proceedings, the question essentially
is that we are asking lawyers to take on cases and they will not
be paid on any individual case for the cost they have properly
incurred. They will either be paid more or they will be paid nothing;
so they might not be paid for the work they have done or they
will be paid for the work they have not done. What the Department
is asking is for them to become so professional that they become
able to take the ups and downs. Is that right?
Baroness Ashton of Upholland:
My hope is that as the system beds down in any event, one day
there will not be a filter, as it were, because cases will only
come forward that have that merit, and I am pretty confident that,
as we look at the way this develops, what will we see is the accredited
firms and the barristers working together with them will begin
to examine carefully those cases that come forward, and what you
will get are people with very high success rates and certainly
high success rates in terms of getting their funding because the
cases that have gone through the filter will have significant
prospects and the judge will endorse that at the end of the case
and they will be paid.
Q97 Peter Bottomley: A 50:50 chance is
not what we are going for here, it is going above that to a 74%
chance, which, as I understand it, is a higher chance than we
are asking for locking people up under control orders? 74% is
very high?
Baroness Ashton of Upholland:
I do not think you can equate this with the kind of risks that
we have where we need control orders. I take the point, but I
cannot accept it in that context. I do not think that there is
anything wrong with trying to develop a system where the way in
which we design it makes sure that we have the filter mechanism,
the place where people make real decisions about what they think
are their prospects of success, that they advise their client
properly, that they bring it forward because they do think on
the basis of the first appeal—because we have already had
an appeal, we have had a decision, we have had an appeal, both
have said "No", we are now into the next phase that
says, "What is different? What happened in that appeal?"
I do not think there is anything wrong with thinking that there
should ultimately be those that are likely to be very successful
where at the end of it you have a very high success rate.
Q98 Peter Bottomley: I understand that,
but essentially were I an applicant or an appellant and I went
to the legal firm or the potential people who represent me and
I said, "I have a two-thirds chance of being successful",
they would turn round and say, "No, we are not going to take
you on because that falls below the Department's threshold"?
Baroness Ashton of Upholland:
I do not think that is what happens at all. I think an applicant
has solicitors, usually it is the same one, and I know there are
issues about dispersal which is why we have built in additional
time if people either are moved or cannot get their legal representative
to do the work within the timescales they have given; but what
you have hopefully got is an applicant who has got legal representation,
the appeal has failed, the applicant and legal representative
together sit down and look at what happened at the appeal and
what they believe should happen next, and where they genuinely
believe that a mistake has been made or there is information that
has come to light, or whatever it is, they will then go to the
filter and say, "We believe our case should be reviewed for
the following reasons." They will look at it again, they
will put it through and the judge at the final stage of that will
say whether the case is ultimately successful or not, that that
was done appropriately and properly and award costs. I do not
think that there is anything other in what I have said that a
system working effectively with very professional solicitors and
barristers supporting an applicant that that is the way it will
work. I do not believe the applicant for one minute will have
the faintest idea what the success rate might or might not be.
What they are more likely to be is somebody who really wants to
keep going through the system because for them, for whatever reason,
this is something that is the total focus of their life.
Q99 Chairman: Baroness Ashton, thank
you very much for your clear and concise answers which have enabled
you to clear the way for your boss to takeover the hot-seat in
good time.
Baroness Ashton of Upholland:
I am sure he will be pleased.
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