|
UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 276-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
Wednesday 9 February 2005 ROGER SMITH and EMMA SAUNDERS MARK HENDERSON, VICKY GUEDELLA and ALISON STANLEY Evidence heard in Public Questions 1 - 63
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Wednesday 9 February 2005 Members present Mr A J Beith, in the Chair Peter Bottomley Ross Cranston Mrs Ann Cryer ________________ Witnesses: Roger Smith, Director, JUSTICE, and Emma Saunders, Tribunal Team Leader, Refugee Legal Centre, examined. 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 high 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 are for leave. 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 with our 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 Oosely when he gave evidence before you in the context of the last Bill. 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 mean 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. 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. 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 stance 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 companies 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 applicant 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 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 contract 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. 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. Witnesses: Mark Henderson, Bar Council, Vicky Guedalla, Executive Committee, Immigration Law Practitioners' Association and Alison Stanley, Immigration Law Sub-Committee, Law Society. Chairman: Mr Henderson from the Bar Council, Ms Guedalla from the Immigration Law Practitioners' Association and Ms Stanley from the Immigration Law Sub-Committee of the Law Society, thank you very much for joining us this morning. You have heard the progress of evidence so far, which has been very informative, and I am going to invite Mrs Cryer to question you. Q28 Mrs Cryer: What proportion of appeals which are currently being brought are completely without merit would you say? Alison Stanley: If I can try to answer, that is an incredibly difficult question to answer because I do not think the statistics are there. There will be appeals brought by individual appellants who are not receiving public funding who are doing it themselves, or who are paying privately, although certainly in asylum I think that is going to be the distinct minority because the vast majority of asylum seekers are not working and do not have the funds to pay for legal representation. I do not think the statistics are there, because I am not sure that the appellate authority distinguishes between publicly funded cases and privately funded cases or litigants in person. It is a very interesting question and I am not sure that we know the answer to it. Vicky Guedalla: I can only say from my experience in the past year that I have needed to withdraw CLR in two cases where I had originally granted it because it emerged in the course of events that they were in fact without merit. That is only two. Q29 Mrs Cryer: Out of how many? Vicky Guedalla: In about 50. Q30 Mrs Cryer: Two out of 50 that you have come across? Vicky Guedalla: Yes. Q31 Mrs Cryer: 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 merits is an inadequate safeguard. In those circumstances, how would you address any potential abuse of the system? Vicky Guedalla: I am not sure that that premise is right because, as Alison said, you have no statistical way of distinguishing between the publicly funded and the not publicly funded cases. I notice, for example, that in the DCA's own evidence to you it is conceded that in the past financial year since the current, more rigorous checks were introduced on 1 April last year, publicly funded appeals have had a higher success rate than previously, so it appears that the measures already in place are beginning to bite. Q32 Mrs Cryer: And that the Legal Services Commission are getting it right in their assessment of cases? Vicky Guedalla: Again, I cannot give you the statistics but it is certainly my impression that that is so. Mark Henderson: You were positing a bad provider bringing appeals that have no merits; under the system that has just come into place that could not happen because those providers that have not proved themselves are not given devolved powers to assess the merits. We also have accreditation which will only start to bite later this year, so all these measures should remove the particular problem that you speak about. Certainly, from the Bar's point of view, we had noticed steady improvement in the quality of instructions and the work being done on these appeals, though that is now threatened by the legal aid changes that are taking place. Q33 Mrs Cryer: Of course, you have already said it may not be a bad provider, it may just be that it is a misled provider in that you have uncovered reasons for not going ahead. Have you anything to say about that, about the number of people who mislead their representative? Mark Henderson: My experience reflects that of Vicky's, very few clients are found to have sought to persuade their representative to take the case forward on a false basis. When that is discovered - and it usually will be - then the representative must and normally will cease to act, and that person will not get any further public funding. It is important to say that the legal aid changes which are being proposed now will not address that problem because they specifically recognise, as must be fair, that a practitioner can only act conscientiously on the information that he has or should reasonably have learned. Alison Stanley: Can I just add in on that point about the client who wilfully misleads the representative, one of the other changes that was introduced back in April last year was a unique file reference number which follows the client around. Q34 Chairman: Our recommendation. Alison Stanley: Exactly so. It is working; obviously, with asylum, the Home Office reference number is normally given very rapidly and so, for example, entirely anecdotally, just last week we were misled by an individual who claimed to be under 18 and then admitted, after at least three days of very strict questioning by a colleague, that in fact he was over that age and indeed had spent some time in another European country, so entirely leading us up the garden path. We obviously stopped acting for him and he will not get representation from anybody else because his unique file reference number will follow him around and the LSC will not permit further funding. That aspect of it, therefore, is working to stop what I think is probably a very small number of individuals who are wilfully trying to run the system. Q35 Chairman: I am not sure that this follows through to the stage at which you are operating, but certainly from our observations of initial interviews in post - in India, for example - we found that people quite often undermined their cases by giving false information, under the mistaken impression that this was what you had to say in the circumstances. I am talking about information that was not actually relevant to the merits of their case, but which fatally undermined the entry clearance officer's perception of their honesty, and it appeared to be because they felt they had to show that they had got the money for air tickets or whatever it was. These were generally people of very little education making what appeared to be genuine family applications to join other members of the family. Has that kind of thing ceased to be a factor at the stage you are dealing with? Are you dealing with, when it happens, the real wilful deceiver? Vicky Guedalla: Either the wilful deceiver or the panicking exaggerator. All of this is an argument for access to high quality representation at every stage of the process. If it gets as far as appeal and there are attempts to deceive, then it is more likely to be flushed out by me or by Alison and her colleagues than if there is no such access to quality, ethical advice, and our anxiety is that these proposals, coming on top of the other rigorous clampdowns recently, are going to drive more and more high quality practitioners out of publicly funded immigration work, and are going to have an effect which is the reverse of what is the Government's expressed intention. Q36 Mrs Cryer: What sort of impact do you think the new proposals, if implemented, would have on appellants? Vicky Guedalla: If it has the effect that we think it is going to have on the availability of quality practitioners, it is going to have the effect that more and more appellants and would-be appellants are going to be unable to find high quality representation. They are going therefore to be driven into the arms of the unscrupulous who still, despite all efforts, are out there in the community, the less scrupulous or less bold practitioners who are afraid to take on their cases at risk under this scheme may take them on for money, so it may backfire in that way as well. Mark Henderson: We are very concerned that these measures will enable the Government to do by the back door what it failed to do through the front door during the passage of the 2004 Act, so it is very important to remember how these provisions were hurriedly cobbled together after the Government accepted that it could not get its ouster clause through Parliament, largely because the judiciary had made quite clear - and we quote some of their comments in our written evidence - that it was contrary to the rule of law and that everybody must have access to the courts. If you are a British citizen seeking to bring judicial review proceedings and you do not get legal aid, then you still have a chance to get your case before the court - you speak English, you understand the decision that you are judicially reviewing, you will be able to draft some grounds, albeit not in legal language, and you will have a right to a hearing, and the High Court judges treat very seriously their duty to elicit the necessary facts and points at an oral hearing. This procedure for access to the High Court is very different; asylum seekers generally will not speak English, they will not understand the determination and in the five days that are available, and with the restrictions on funding on solicitors, they are very unlikely even to have it translated to them. Even if they did have it translated they would, presumably, only be able to do grounds in their own language - the court presently has no facilities to translate these - the procedure is on a point of law only, they will not understand that, and there is no entitlement to an oral hearing. As far as I know the DCA has not suggested that there is any possibility that an asylum seeker could have effective access to the High Court unless he was legally represented, but the effect of these proposals is that asylum seekers who do not have completely unmeritorious cases will be denied access to the High Court. We do think that that is the ouster clause by the back door. Q37 Mrs Cryer: It came out in what you were saying that there is a crucial role for an interpreter. How does the representative come to know the case if there are no translators? Alison Stanley: There are, and they are currently funded and under the new proposal it is suggested that those external disbursements will be funded, whatever the outcome of the case. You have to work through an interpreter in order to take instructions, it is impossible otherwise. Q38 Mrs Cryer: In the courts there would be a translator. Mark Henderson: The Court Service provides interpreters at hearings. Q39 Chairman: This is a paper exchange initially, is it not? Mark Henderson: For the appeals before what will be the Asylum and Immigration Tribunal, which are determined at a hearing, the court provides an interpreter, firstly to interpret between the appellant and the court and, secondly, because it is accepted as a matter of fairness that the appellant is entitled to have the full proceedings translated to him. The High Court procedure for statutory review is different; there there are no translation services provided by the court and the necessary interpreting services which are required so that the appellant can understand the proceedings and give instructions are provided by the solicitors, funded by the Legal Services Commission. Alison Stanley: Can I just add in - and again this is anecdotal because so far we have not been able to survey all suppliers - in terms of a decrease in representation of suppliers to individuals it is quite clear that it is already happening because we have now got information that there is only going to be one firm left in the north-east that is going to be supplying legal aid, no firms are going to continue in Leeds, there is a diminution in the number of suppliers in London - and that is often not that firms are pulling out completely, but they are altering the ratio of privately funded work and publicly funded work. The main supplier in Birmingham, which has an excellent reputation, is reducing the proportion of legal aid work; currently they do 70% publicly funded work, they are reducing it to 30%. Q40 Chairman: All of this is the result of the proposals we are now discussing, so this is just context. Alison Stanley: This is the context, but because that is happening there will be an increase in unrepresented clients, so the scenario that Mark has given of unrepresented clients trying to work the system is going to be a real one and that is certainly going to have an impact on the work of the High Court Vicky Guedalla: The comment that we have from one of our members who no longer does publicly funded work - his work is all privately funded - is that he says of his previous experience: "If I had not had the training and experience I acquired at [he names a very highly reputable firm that he worked with previously] I would not be able to competently undertake asylum and human rights work on a private basis now. As firms stop doing this work, these skills and experience will become scarce or die." A comment from another member at the other end of her career, a category 2 accredited case worker under the new scheme who is deciding not to continue and qualify as a solicitor: "I am not interested in a career involving substandard work for vulnerable people." The Committee really should not underestimate the devastating effect of these proposals on morale, coming on top of everything else and, as has already been mentioned, the sheer financial uncertainty. We are, most of us, small bus8iness-people, medium-sized businesses, with salaries and overheads to pay. An analogy has been made with conditional fee agreements in other areas of work, but the margin of error, the margin of profitability in PI work is infinitely greater than it is in this area of work. It is already cut down to the bone and the amount of bureaucracy that we have to undertake, unremunerated, to deal with the Legal Services Commission has increased multiply, particularly since April of last year. I have endured that, I do not say entirely uncomplainingly, but I am prepared to tolerate it because I perceive it to be part of a necessary good husbandry endeavour by the Legal Services Commission to improve standards and to keep a grip, but it does not leave any slack for these proposals to be added on top and squeeze me even further. Q41 Chairman: These proposals must only represent a small proportion of the work that you and other practitioners do in the immigration appeals field at the highest level. Vicky Guedalla: They do, but if you are doing this work properly, if you are delivering an hour's work for every hour billed, there is so little slack that you really cannot afford it. If this were to constitute 5% of my work, I cannot afford to be not paid for 5% of that which I am currently paid for because I already have to spend such a high proportion of my time doing unremunerated bureaucratic work to help the Legal Services Commission in its administration of the system. It cannot be done. Mark Henderson: For many barristers this really will have a very substantial economic impact, partly because they are sole practitioners and so cannot share the risk with colleagues, partly because quite often an initial appeal will be done in-house by the solicitor's firm and a barrister will be instructed at the stage of the High Court proceedings. The DCA has been saying that this is not a no win-no fee scheme, but on the present proposals that is exactly what it is for the High Court proceedings because the DCA proposes - for we respectfully submit no good or valid reason - drastically circumscribing the High Court judge's power to award costs where the High Court proceedings are unsuccessful. The Bar Council had a consultative meeting at which more than 30 immigration barristers were consulted about their views, including a substantial proportion of the junior Bar, and certainly the judiciary and the IAA and we had also understood the Legal Services Commission, because they had placed considerable resources into training junior barristers because they thought they provided accost-effective and quality means of providing advocacy at appeals. Not one of those barristers thought their practice would be economic under the DCA's proposals as they currently stand. Q42 Peter Bottomley: Essentially what we are hearing is that the Department of Constitutional Affairs is becoming a department of administrative complications and unfair funding to achieve the result which Government could not achieve when they wanted the ouster clause. Judges and Parliament in effect said this would not be just, so the Department has come forward with a different scheme and, by the way, separately is proposing that those judges should not remain in Parliament so presumably the same thing could not happen again. Can I just go back to what Mark Henderson was saying, just for a moment? If I am a potential appellant who cannot persuade a provider to take on my case, I am left without English in most cases, without legal training, trying to write something which the High Court can look at on a paper basis to decide whether I should be able to have my appeal, is that roughly right? Mark Henderson: And having a determination in front of you in a foreign language and wondering who is going to translate for you. Q43 Peter Bottomley: Perhaps we ought to say to the Department of Constitutional Affairs could they take one of their non-legal eagles and ask them to prepare something in French - not North Serbian Croat but in French - in similar circumstances and see what they come up with. They would then get a French judge to look at it and say whether they understood it, let alone whether they could make a decision. Would that be a fair way to approach it. Can I move on to the Legal Services Commission? We have heard that even if the Government did not bring forward these proposals, things might be roughly the way they were, an improving trend with fewer cases of less merit being taken forward? Vicky Guedalla: Yes. Q44 Peter Bottomley: It might be sensible, would you say, that the Government actually sought to drop these proposals for a time and let the present changes work through for a year or two and see what happened. Would that be a substitute? Vicky Guedalla: The accreditation scheme does not kick in fully until 1 April. Alison Stanley: Certainly, we would say that these are premature, they are not obliged to bring in these arrangements yet and it would seem to the Society to be eminently sensible to let the changes bed down and to see if the new AIT does result in an improvement in decision-making, which we all hope that it does. If it does then the review process will not be overwhelmed; if it does not result in an improvement in decision-making then surely it would be contrary to the interests of justice for these appellants to be denied public funding. Certainly, the new accreditation scheme which is compulsory imminently (in April) has been a very stiff test and I am certain it will have sorted out a lot of sheep from goats in that respect. The other factor of course is the drop in the number of asylum applications, which inevitably will lead to a drop in the number of appeals. Q45 Peter Bottomley: If we have a drop in the number of asylum applications, we presumably can expect that every case which is granted on appeal or review means that the adjudicator was not able to make the right decision in the first place. Vicky Guedalla: Yes. Q46 Peter Bottomley: And presumably we should expect the adjudicator to be making more right decisions and making more grants of applications when they are justified. Vicky Guedalla: Yes. Q47 Peter Bottomley: Do you think it would be acceptable for the Legal Services Commission to provide funding when there is a significant prospect of success rather than 50/50? Could you be fairly be asked to do that, or ought they to grant it on a50/50 basis? Vicky Guedalla: I agree with the evidence of the president of the AIT in this regard, Ousley J, who said that essentially one should apply the same test for whether to grant funding as is applied presently by the High Court or the AIT in considering an application for a review. That involves realistic prospect of success at the ultimate hearing; I would say that that means that there are significant prospects. It is always artificial to express these things in percentage terms, but providing that significant prospects was reasonably understood I do not think we would fight over the terminology. Q48 Peter Bottomley: If at the moment the risk premium is supposedly 25%, that suggests you have to have a four in five chance of success for the thing to come out at 100% of costs. If you add on a quarter to 80% you get to 100%. We are presumably thinking of significant prospects of success being way below that. Vicky Guedalla: Yes. Q49 Peter Bottomley: Without going into percentages, more likely than not, rather than two out of three cases will be granted. Mark Henderson: Yes. We understand that the DCA at one point wondered whether in percentage terms they should be looking at around 70% as the threshold. It would be extraordinary in this field, where questions of life and death are at stake, to, as we have discussed, effectively deny someone access to the High Court whose case was more likely than not to succeed than to remove him, where on that basis he is at fairly substantial risk of being killed. Q50 Peter Bottomley: Are there objections in principle to introducing retrospective funding? Alison Stanley: Certainly there are, I think we can all say that. It is going to be an impossible task for a judge to make a decision on funding at the end of the case because they will have to participate in an extraordinary feat of mental gymnastics to put him or herself back into the position of the adviser at the beginning of the case with the information that was then available to make an assessment of whether or not it was significant, if it goes for the first option. I would say that in itself "significant prospects of success" is a very ambiguous phrase and it is not at all clear what it means, and if it means reasonably arguable then we would have no objection to it, but it is not entirely clear what it does mean. If the High Court judge considers that a case is reasonably arguable and that was sufficient to send it back, then that should be enough to justify funding the case. It is absurd to expect a subsequent hearing to determine whether or not a case should be funded; if the High Court judge considers it to be arguable then so be it. Q51 Peter Bottomley: Because the practitioner has to make the decision on the information available to the High Court judge. Alison Stanley: Exactly so. Vicky Guedalla: In the absence of bad faith the practitioner should expect to be paid for honest work honestly done, and there are already safeguards for those cases where there has been an absence of good faith or an absence of due diligence; judges already have the power to make wasted costs orders, to refer practitioners to their professional bodies, to refer cases back to the Legal Services Commission. They even have the power to order that the Legal Services Commission pay the other side's costs in really extreme cases. Q52 Ross Cranston: Of course, in practice that does not happen very often, does it, any of those? Vicky Guedalla: Well, if that is not happening very often maybe that is more evidence that a sledgehammer is being brought to hit a nut. Q53 Ross Cranston: I wanted to ask you what may seem to be self-interest questions to my colleagues about the profession - which come out of your submission actually - about how is the risk going to be shared between the Bar and solicitors, now that the solicitor may be disadvantaged because the barrister gives advice that is not up to the mark, and of course vice versa, that the barrister may not be properly briefed. If the case fails the risk has to be borne by someone; how is it going to be divided between the two parties? As I understand it the Department does not have a view yet on this, but how is it going to work in practice? Mark Henderson: What we do understand the Department has accepted is that people should be judged only on the information that was available to them at the time, which must be fair and indeed was what Parliament was told would happen, and the Department has accepted that costs should only be at risk if there has been a properly funded opportunity to assess the merits first. We accept that barristers are in a different position from, say, experts, who we agree must be funded in any event because they do not have an opportunity to assess merits. Of course, for the reasons we have said we oppose conditional fees in this area fundamentally, but if it is going to happen then we accept that all practitioners who have the opportunity to assess the merits should have their costs at risk based on what they knew at the time. That obviously means that different assessments are going to have to take place for the solicitor and the barrister; that only adds to the complexity and artificiality of that assessment being done months hence by a member of the AIT. Q54 Ross Cranston: You would expect the adjudicator to make that decision. Mark Henderson: He would have to, in the same way that in the wasted costs jurisdiction presently solicitors and barristers are often treated differently. As I think Justice said in their submission, the fact is that obviously, as a matter of fairness, there would have to be provision to treat them differently compared to what they knew and when they were involved in the case. That simply adds to how unworkable these proposals are, and to the extent of the cost and effort that is going to be required to deal with a minority of cases which, as you have heard, certainly could be - even if they are not at the moment - dealt with under arrangements that are presently in place. Q55 Ross Cranston: Alison, that would be your view, if it did come in, that the adjudicator should be making the decision as to where the costs would fall between solicitors and barristers? Alison Stanley: If it comes in - and obviously we oppose the principle - then it seems only fair that both barristers and solicitors should be obliged to share the risk but, quite clearly, the assessment at the point of risk is slightly different for both parties and barristers should have a separate right of appeal on that, otherwise it would be grossly unfair for everyone; there should not be just one appeal over the cost issue as a whole. In fact, that reflects what happens at the moment on all taxation, that there is an opportunity to appeal against a taxation on either the solicitor's costs or on the barrister's costs. Currently solicitors appeal on behalf of both, but the barrister can put forward their own arguments. Q56 Chairman: Who are you appealing to? Alison Stanley: In certificated cases it is to a taxing master in the High Court - they are called an assessment officer or a costs judge, I believe. I am sorry for not getting the right terminology. Q57 Chairman: The Government have not yet indicated an appeal mechanism for this, or is it being assumed that you are going to go to a taxing master or whatever? Alison Stanley: It is assumed that it would be back to the AIT, and I believe there is an assumption that it would go to the President of the Tribunal. Q58 Chairman: I think you felt that there was a consistency issue, that if you do not have a mechanism you cannot enforce or safeguard consistency of decisions. Vicky Guedalla: There certainly needs to be an appeal mechanism and a transparent appeal mechanism. A decision to refuse funding retrospectively in a case is casting a professional slur on the practitioners who made those decisions, and it is very important that they should have every opportunity to contest it. Chairman: Are we talking about anything different in character to what happens in other areas of law in terms of what sort of appeal mechanism you have? You are not trying to create some tribunal are you? Q59 Ross Cranston: They simply want it done in the normal way. Vicky Guedalla: It is not quite analogous to anything that happens in any other area. Q60 Chairman: The reason for a retrospective judgment is, by definition, different. Vicky Guedalla: There are mechanisms at the moment if one's costs are cut back --- Q61 Chairman: It is reflecting on the integrity of the practitioner. Vicky Guedalla: Yes, it is. Q62 Chairman: It is really something analogous to or indeed the same as the mechanisms which exist in other areas of practice, in that without it there is the risk both of severe unfairness to a particular practitioner and inconsistency of decision-making. Mark Henderson: There must be a mechanism and I think the president of the AIT in his evidence to this Committee accepts that it should not simply go back to the same body that has already made the decision, and I think he suggests that the High Court in some form is really the only other feasible body, because under the DCA's proposals you are actually looking at the overall merits of the asylum case, of the litigation, rather than simply whether six hours was a reasonable amount of time to spend on a witness statement, which again brings us back to the point that these hastily cobbled together procedures really are turning out to be a sledgehammer to crack an increasingly small nut. Alison Stanley: If it would help, the Society can give you a very brief note on the current costs system and the method of appeal on it. Chairman: I think, perhaps more pertinently, whether the present costs system could be available for dealing with this or whether something more elaborate is needed. Mr Bottomley. Q63 Peter Bottomley: Can I come back to this risk premium business again? If we take, for example, the Refugee Legal Centre, which are recognised as being pretty good at what they do, if they have a 70% success rate, and on the pretty broad assumption that cases are equal - which you say is average - my calculation is that they need to have about a 43% risk premium to be able to meet all their costs; if you divide 30 by 70 it comes to 42.8%. How on earth can we expect people to go for a success rate significantly higher than 70% unless we are asking people outside the government-funded legal system to make a loss? Vicky Guedalla: You cannot, and may I say in answer to you, before we get on to calculating what the risk premium ought to be, we need to look at the risk premium on top of what? At the moment publicly-funded applications to the High Court are remunerated under legal aid certificates which pay a basic hourly rate of £79 for London practitioners, on top of which you can be awarded enhancements of up to, in theory, 100% or more for particularly expeditious or difficult or complicated work. That is paid under the present system, not retrospectively - again, you know you are going to get paid the basic rate plus a bit if it is extra good work - but what is proposed here is to offer a much lower rate than that, to bring it down to CLR rates, and then put a small risk premium on top of that, so the final rate you actually end up with is less than you would get on the equivalent work now. We see no excuse for it paying any High Court work differently than other High Court work. Mark Henderson: Could I just add on that point that we, the Bar Council, was particularly shocked to find the reference to High Court work being paid by CLR in the consultation document, given that Parliament had been told by the Lord Chancellor that a success fee would be paid. We had discussed in a series of meetings with the DCA the level of risk premium that should be applied; we then get a proposal which, if effected according to CLR standard rates - and that was the implication - would mean that for many barristers you are looking at cutting the basic rate by 50% and then giving you 25% back. We are happy that the LSC has assured us, though they have not yet told us how they are going to do that, that they will rectify that anomaly. Peter Bottomley: Getting away from the interests of the Bar and the solicitors, do you think we should be asking the Government is what they are putting forward proportionate, is it necessary, is it fair and will it work? Chairman: I think that is what we are asking them, and at that point we need to bring these proceedings to a close. I am very grateful to the three of you for the help you have given us today; thank you very much. |