First Standing Committee on Delegated Legislation

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First Standing Committee on Delegated Legislation

The Committee consisted of the following Members:

Chairman:

Dame Marion Roe

Bacon, Mr. Richard (South Norfolk) (Con)
Byrne, Mr. Liam (Birmingham, Hodge Hill) (Lab)
†Clifton-Brown, Mr. Geoffrey (Cotswold) (Con)
Fitzsimons, Mrs. Lorna (Rochdale) (Lab)
Heath, Mr. David (Somerton and Frome) (LD)
†Hoyle, Mr. Lindsay (Chorley) (Lab)
†Keeble, Ms Sally (Northampton, North) (Lab)
†Lammy, Mr. David (Parliamentary Under-Secretary of State for Constitutional Affairs)
†Malins, Mr. Humfrey (Woking) (Con)
†Moffatt, Laura (Crawley) (Lab)
Moonie, Dr. Lewis (Kirkcaldy) (Lab/Co-op)
†Murphy, Mr. Denis (Wansbeck) (Lab)
Norman, Mr. Archie (Tunbridge Wells) (Con)
†Prentice, Ms Bridget (Lewisham, East) (Lab)
†Sheridan, Jim (West Renfrewshire) (Lab)
†Tyler, Mr. Paul (North Cornwall) (LD)
      
Keith Neary, Committee Clerk

† attended the Committee

 
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Monday 21 March 2005

[Dame Marion Roe in the Chair]

Draft Community Legal Service (Asylum and Immigration Appeals) Regulations 2005

4.30 pm

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I beg to move,

That the Committee has considered the draft Community Legal Service (Asylum and Immigration Appeals) Regulations 2005.

The Chairman: With this it will be convenient to consider the Funding Code: Legal Services Commission Funding Code Criteria Amendments 2005.

Mr. Lammy: It is good to be before you again, Dame Marion, to debate the Government’s asylum and immigration proposals. I recall playing a similar role sometime last year, perhaps in this very Room, when we debated asylum and immigration matters.

The regulations are made under section 103D of the Nationality, Immigration and Asylum Act 2002 as inserted by section 26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Section 103D provides for the High Court and the asylum and immigration tribunal to order payment of an appellant’s costs for a review of an AIT decision and any pursuant reconsideration out of the community legal service fund. The regulations establish the statutory framework for those new arrangements and prescribe the precise circumstances in which costs can be paid. The funding code is modified under section 9 of the Access to Justice Act 1999. The regulations and the code are subject to parliamentary approval under the affirmative resolution procedure.

It is important to explain why we are making the regulations. The new arrangements are being introduced to combat abuse of the appeals process and to reduce the number of weak applications pursued through the system. That is imperative to ensure that we increase speed and efficiency in the asylum and immigration system and that we target resources effectively. There has been general agreement in the House on the need to ensure that public money is focused on the right areas and that legal representatives do their best by the asylum community. A minority of legal representatives has sought to pursue through the system cases that clearly lack merit and it has drawn on public funds to do so. These proposals are designed to address that.

The Legal Services Commission has already introduced a comprehensive package of reforms to drive up the quality of legal representation and to reduce exploitation of the system. Those initiatives include introducing a financial threshold for the initial
 
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decision-making stage, taking the application of the merits test for asylum appeals in-house and introducing compulsory accreditation, which will be phased in from 4 April.

Unfortunately, evidence shows that high volumes of legally aided and unmeritorious cases are still pursued beyond the first tier of appeal. Between 2003 and 2004, approximately 30,000 decisions were made in asylum cases on permission applications to the immigration appeal tribunal. Of those decisions, only 33 per cent. resulted in permission being granted; the remaining 67 per cent. of applications were dismissed. That is a very high number of cases and more must be done to ensure that that trend does not continue under the new single-tier arrangements.

The new legal aid scheme will support the aims of the new appeals structure by encouraging representatives to focus more carefully on the merits of a case before agreeing to provide representation. It introduces an element of risk: a representative who chooses to pursue a weak case risks not being paid for their work. The Government consider that to be a proportionate response to the problem of abuse of the appeals system. It strikes the right balance between discouraging abuse of the system and securing access to justice for genuine claimants. We announced our decisions on the scheme on 24 February 2005, and we made a number of changes to our original proposals after carefully considering the responses to the public consultation.

The new regulations will apply only to the review and reconsideration of appeals under section 103A of the 2002 Act and only if the application was made by the appellant. The arrangements will not apply to all other stages of the appeals process, including the original appeal to the IAT, any appeal to the Court of Appeal, applications made by the Home Office and fast-tracking procedures. The arrangements will also not apply to the representative’s initial advance to the appellant on whether to apply for a review of the tribunal’s decision. That will be funded as part of controlled legal representation for the original appeal and will ensure that every appellant has the opportunity to make an informed decision about whether to challenge the tribunal’s decision.

The representative will have devolved powers to grant representation, which will be based on the test that the tribunal judge will apply when deciding whether to make an order for costs in an unsuccessful case. Successful cases will always be funded. The test, as set out under regulation 6, is whether the tribunal is satisfied that

“at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration.”

If the representative thinks that the appellant’s case does not have a significant prospect of success and agrees to provide representation, the review application will be considered in the first instance by the IAT acting on behalf of the High Court under what is being called the “filter” stage. If the application is dismissed, the applicant can opt for the High Court to consider the application—that is the “opt-in” stage.

 
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The tribunal and the High Court will share similar powers to award costs. The powers will extend only to awarding costs for the review application and will be exercisable only in limited circumstances. Under regulation 5(2), if an application is successful, costs cannot be awarded because if a reconsideration is ordered, funding will be dealt with subsequently. Under regulation 5(3), if the High Court refers a case to the Court of Appeal because it raises a point of law, costs must be awarded. Under regulation 5(4), if an application is unsuccessful, costs may be awarded but only if the tribunal or the High Court think that the case would have had significant prospects of success had there not been a change in circumstances or a change in the law since the application was made. Under regulation 5(5), if a reconsideration is ordered but does not take place, the representative—or counsel instructed by the representative—can apply for costs to be awarded to ensure that they are able to recover those costs if the case is withdrawn, abandoned or conceded.

If an application is successful, a reconsideration will be ordered. The circumstances under which costs can be awarded in the reconsideration stage are set out clearly in regulation 6. Under regulation 6(2), if a case is successful at the reconsideration stage and the appeal decision is overturned, costs must be awarded. Under regulation 6(3), if a case is unsuccessful and the appeal decision is upheld, costs may be awarded but only if the tribunal is satisfied that, at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration.

It will be for the judiciary to interpret the regulations and what “significant prospect” means. The purpose of the scheme is to reduce the number of weak cases moving through the appeals process and to discourage unmeritorious challenges to tribunal decisions.

Ms Sally Keeble (Northampton, North) (Lab): What happens if a case is well founded but the legal representation is so useless that the person does not stand a chance?

Mr. Lammy: My hon. Friend will know that at the heart of the tribunal system, and one reason why we set up tribunals post-welfare state, is to have informality so that the judges or the chair—depending on the nature of the tribunal—can be robust about what evidence comes before them. Our adjudicators have demonstrated that.

Over the past 18 months, we have tried to deal precisely with my hon. Friend’s concern and root out bad supply in the system. As a result of that, better quality immigration and asylum lawyers are left in the system. We have brought in accreditation and dealt specifically with the nature of the relationship between the solicitor and the Legal Services Commission. She can therefore be assured that, with those changes and this one, cases that have merit will move through the system, the right decision will be reached and people will be able to remain in this country. However, people will not be able to play the system continually.

 
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An unsuccessful outcome at the reconsideration will not automatically lead to costs being refused. This is not how the scheme has been designed. It is not no-win, no-fee. The test that the tribunal must apply will be based on the prospects of success and the information that was available to the representative at the time the application was made. This is a specific requirement of the test in regulation 6(3) because we realise that representatives cannot make an assessment of the prospects of success based on information that they do not have.

Finally, I should like to turn to the provision made for challenging funding decisions by the tribunal. Regulation 7 sets out how this process will work. Following the reconsideration of the appeal, if the tribunal refuses to award costs, this decision can be challenged on a written application for review. Both the representative and counsel instructed by the representative will have the right to apply for a review of a decision to refuse costs. As counsel will have to share the risk with the representative, it is right that they should also be able to challenge costs decisions. That is set out under regulation 7(2), 7(3) and 7(4).

I have briefly outlined the substantive provisions of the regulations. I now turn to the consequential changes to the funding code criteria and procedures that we have laid before Parliament arising from the commencement of the AIT on 4 April 2005. Amendments to section 2.4 and 13.1 of the funding code criteria replace references to proceedings before the immigration adjudicator and the immigration appeal tribunal with the asylum and immigration tribunal or the High Court in relation to review applications. I commend the draft regulations and revised funding code to the House.

4.42 pm

Mr. Humfrey Malins (Woking) (Con): I welcome you, Dame Marion, to the Chair. May I say on behalf of us all that if this is indeed to be the last occasion on which you chair our proceedings we shall miss your wise guidance and assistance enormously? You will leave the House after a long and distinguished career and I thank you for being in the Chair today. I am also grateful to the Minister for the helpful way in which he outlined the regulations.

The existence of legal aid in any democracy is one of the clearest signs that democracy is thriving, because it is an admission by the state that members of the community should be funded in order to challenge the decisions of the Executive. We can be proud of the operation of our legal aid system over many years. At the same time, we are all aware that legal aid costs have been rising dramatically over the past few years, and nowhere is that more true than in asylum and immigration. The asylum and immigration legal aid bill for the years 1996–97 was £26 million. By 2003–04, it had risen to £204 million—a dramatic increase. The perpetual difficulty is that we are dependent on the integrity and honesty of those who bring legal cases.

I will not vote against the regulations because it is perfectly proper to want a system under which unmeritorious appeals are not brought. Lawyers who
 
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bring unmeritorious appeals are few in number and not reflective of the profession. I recall that during debates last summer my hon. Friend the Member for Beaconsfield (Mr. Grieve) said we should

“introduce sanctions, including the loss of legal aid, for an unmeritorious appeal.”—[Official Report, 12 July 2004; Vol. 423, c.1164.]

So far, so good, and I think that all Members will acknowledge that over the years there has been some, albeit, I hope, not too much, abuse. There are several experts on asylum and immigration law in the House, including the hon. Member for Walthamstow (Mr. Gerrard), who is not present today. He said during our debates last summer that he did not want cases with absolutely no merit to be funded from public funds. The hon. Gentleman has a long track record of concern and involvement in these matters.

The test that will apply to the reconsideration aspects of legal aid is indeed a high one, and some argue that it is too punitive and too strong and want to probe the Government about its meaning. The exact wording is that there has to be

“a significant prospect that the appeal would be allowed upon reconsideration.”

In an interesting intervention, the hon. Member for Northampton, North (Ms Keeble) asked the Minister—I hope I paraphrase her correctly—what would happen if an applicant had a good case that was appallingly presented by the lawyers. Would that enable the retrospective granting of legal aid? The answer is that we hope so; we hope that the judges would take a sensible, robust view and when they felt that it was a proper case for legal aid it could be granted retrospectively. The word I would want to use is “proper”. If a judge were faced with a test in the regulations that the appeal had to have a significant prospect of success, I hope that he would use his common sense and decide, if the case had sufficient merit—those are my words, not from the regulations—to justify the granting of legal aid.

Under the retrospective legal aid funding arrangements an order for legal aid would be made by a tribunal or, more infrequently, a High Court judge at the end of the review process. Perhaps unusually, applicants and their representatives would not know whether the appeal qualified for legal aid until the end of the case.

The Law Society believes that the merits test of significant prospect of success is very stringent and too high. The Government’s objective is to prevent the new tribunal from being overwhelmed with weak applications, especially in relation to asylum appeals rather than other immigration measures. It is a laudable aim, but have they gone too far? The Law Society certainly believes that existing measures are sufficient to deal with the problem without the need for
 
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retrospective funding and the new merits test. It is concerned that the proposals will lead to an unacceptable reduction in access to justice for some of the most vulnerable people in society.

We always need to remind ourselves that we are not dealing with people who have committed a criminal offence. Many asylum seekers are very vulnerable indeed and they are guilt-free in respect of criminal convictions; they are merely bringing a claim for refugee status. I ask the Minister to comment on what he thinks of the strengths of the safeguards or the filter systems that already exist that help to prevent unmeritorious cases from reaching the review stage.

The Legal Services Commission, for example, performs quality controls on firms conducting publicly funded immigration work, including cost assessments, audits, quality mark audits and peer review. Furthermore, all publicly funded review applications are subject to the controlled legal representation merits test, which requires cases to have more than a 50 per cent. prospect of success. That means that appeals must at least reasonably be arguable to qualify for legal aid. From next month, all lawyers undertaking publicly funded work in these cases will have successfully completed a rigorous process of accreditation, providing a further safeguard on the quality of advice. In addition, there is the rigorous filter of judicial scrutiny. There are many more safeguards than there were some years ago, and they go a long way to meeting some of the Minister’s arguments.

The new merits test of a significant prospect of success is the highest merits threshold in the legal aid system. It has been introduced specifically for tribunal review applications and is intended to be more stringent than the current test for immigration and asylum matters. I do not know whether the Government have yet issued guidance on what they mean by a “significant prospect of success”. A figure of 75 per cent. was mentioned by officials of the Department for Constitutional Affairs and was not denied by the noble Baroness Ashton when it was put to her during her evidence to the Constitutional Affairs Committee. What does that mean, if she did not deny it? Does it mean that legal aid will be granted only when the judge takes the view—I take the point about whether the appeal is granted—that when a case began it had a 75 per cent. chance of success? If so, the figure is extremely high, and will mean that vast numbers of appeals will not be made, and many individuals will suffer serious consequences as a result.

I am not sure whether the merits test of a significant prospect of success has been properly defined. I should be glad if the Government issued guidance and told us exactly what it means in practice. It is unacceptable to the Law Society, which thinks it is unclear, and to others. The Law Society also worries that the proposals might substantially reduce the number of
 
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solicitors and counsel carrying out publicly funded work. I ask the Minister to say what impact the regulations might have on the number of people who are prepared to undertake such work.

I had the honour to found the Immigration Advisory Service in the early 1990s and to be chairman of the trustees for some years. It, too, is concerned about the implications and effect of the new regulations. It worries that they could discourage some practitioners from risking their reserves, thereby denying access to justice.

The DCA held a half-day event in London on 11 March to explain the new legal arrangements for review and reconsideration decisions. It clearly stated that it was the Government’s intention that all applications that pass the initial review stage will benefit from a funding order at the end of the reconsideration stage—even if, ultimately, the case is unsuccessful—

“provided that there has been no dishonesty on the part of the legal aid supplier in representing the grounds for review.”

The Law Society states:

“If this is to be the standard, it is a positive development insofar as although there is still a risk to suppliers in taking on these cases, that risk is reduced to the work required for the review stage and, where a full consideration is then ordered, the supplier can be virtually certain of receiving payment at the end of the case. It therefore offers some certainty as to payment earlier on in the proceedings.”

However, it adds that it is concerned that

“this stated intention is not reflected anywhere in the regulations and that the DCA maintains the position that the interpretation of the ‘significant prospects of success’ test should be left to judicial discretion. This could lead to inconsistency in the interpretation of the test. If it is the government’s intention that cases that pass the review stage will (apart from exceptional circumstances) ultimately benefit from a funding order, the Society believes that the regulations should be amended to clearly reflect this and provide clear guidance to the judges as to the intentions of parliament.”

I hope that the Minister will comment on that meeting.

My concern is that the new merits test will be a very high hurdle. Anyone who wanted legal aid would have to jump a merits hurdle to be granted taxpayers’ money to pursue a case. The new test might indeed be too high for a number of genuine applicants. Are the changes to legal aid really necessary at this stage? Could we not let the system settle and bed down for a year or two with a normal—I use the word advisedly—legal aid test and see what happens before introducing a test that many people think is draconian? We would not be having this debate if the Government’s record on initial decisions was as good as it should be, but that might be a topic for another day. Having expressed my concerns, and having asked the Minister to satisfy them, I conclude my remarks.

The Chairman: I remind Members that the reading of a newspaper in Committee is against Standing Orders.

4.58 pm

Mr. Paul Tyler (North Cornwall) (LD): The hon. Member for Woking (Mr. Malins), in his introductory remarks, presumed that this might be your last appearance in this capacity, Dame Marion. Therefore,
 
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I too pay tribute to a long and distinguished parliamentary career, which, if I may say, demonstrates that people can contribute a great deal to Parliament without becoming a Minister. I, too, do not intend to stand in the forthcoming election, but perhaps I should remind all members of the Committee that we do not know whether it will be your last appearance, Dame Marion, or indeed mine. We may both hope so—my wife tells me that she hopes that it is my last appearance—but my bank manager keeps reminding me that, technically, dissolution does not have to take place until June 2006, the fifth anniversary of the last election, so colleagues may see us again.

I want to follow on from what the hon. Gentleman said in a number of respects, but first I pay tribute to the excellent briefing that he and I have had from the Law Society, which is the organisation at the sharp end. I shall refer to some of its concerns, which the hon. Gentleman has already mentioned.

In his introduction, the Minister stressed the fact that—I hope that I paraphrase accurately—only a minority of cases that clearly lack merit are being pursued to the second level. What is so significant about the current position is that, as the hon. Member for Woking said and the Minister also emphasised, many steps have already been taken to deal with the problem, and Members on both sides of the House would recognise that there has been significant success. The Minister also said that the evidence that some cases that clearly lack merit are still pursued dates back at least a year and possibly longer. The hon. Member for Woking referred to timing at the end of his remarks and I shall return to that issue.

It should be clear this afternoon that we are making a significant change. Instead of the merits test being generally applicable across tribunals, we are introducing the new concept of significant prospects of success. Most importantly, we are doing so in a difficult way, because the measure will be retrospective. Somebody will be asked, perhaps months after the event, to put themselves in the mind of the legal adviser, which is very difficult. I hasten to say that I am not a lawyer, thank God. I take the Shakespearian view of lawyers—hang them all. But it would be difficult for any of us to imagine what someone was thinking so many months before—perhaps even a year—when advising a client on their prospects of success. That will be particularly difficult in complicated cases, which these cases often are. Every Member of Parliament knows how complicated they can be. I have misgivings about regulation 6(3), which relates to the criteria for making orders, because the element of retrospective judgment will be incredibly difficult to pursue.

I understand from what the Minister has said this afternoon and from what has been said on a number of other occasions that the Government are still
 
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worried that new tribunals may be overwhelmed by weak applications. However, given the information that he has given us, let alone what we all know anyway, I wonder whether that is a realistic assessment.

The hon. Member for Woking referred to a number of the points raised by the Law Society. I should like to reiterate that important filters are already in place. All credit to the Government for helping to put those filters in place, but they have not been there long. We do not yet know how effective they will be in the longer term. The accreditation of practitioners is extremely important. I hope that that will deal with the issue to which the hon. Member for Northampton, North referred. No doubt the measure is not perfect, but at least it is an important step in the right direction. Rigorous funding filters are already in place. It is fair to say that the LSC has, to a considerable extent, got its house in order. We may not agree with all its decisions, but it has improved its operation to a marked extent. I share the Law Society’s view that further limitations on the availability of legal aid are not necessary or legitimate at this stage.

That brings us, fair and square, to the issue of significant prospects of success. Reference has already been made to the noble Baroness Ashton, who estimated that the hurdle might be 75 per cent. I hope that the Minister can return to this issue, because that would be a very high hurdle and would not be acceptable in any other part of the judicial system. We need clear guidance and I hope that we will get it this afternoon.

The proposals are premature. We should be considering carefully how the improved conditions and more rigorous criteria have been applied, instead of rushing through these proposals. There will be particularly unfortunate side effects. It is clear to the Law Society, which, after all, must be our professional adviser on this issue, that the number of solicitors and counsels carrying out publicly funded work in this area will be reduced, and that will make it much less easy to ensure that the system operates effectively and fairly. I am told that immigration lawyers are, on average, among the least well paid in the profession. Despite what I said previously, there are those who do a great deal of work for the community to maintain the principles of justice to which we all subscribe and who are not particularly well paid. It is unfortunate that the new restrictions target them. They simply will not be able to afford to take the chance of doing substantial amounts of work for which they might not be paid.

There may be other grave consequences. Asylum seekers may feel that they have to try to appear in person, without proper legal representation and advice. That could clog up the system and it could result in injustice. I am very concerned that if there is an apparent denial of representation it could give rise
 
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to a claim under article 6 of the European convention on human rights. We all note the comment from Ministers at the Department for Constitutional Affairs—Decaff as I like to call it—that it does not infringe the convention, but that is at least a possibility. If there is a significant increase in litigants pursuing their cases in person, particularly if they have only a limited command of English, the possibilities for injustice are that much increased. It would seem too early to adjudge the various other improvements that have been made. The hon. Member for Woking made that point forcefully and he may join me in voting against the regulations if he is not satisfied by the ministerial explanation.

Finally, it is curious that it has taken some time for these regulations to come before us. Now they are being speeded through when everyone seems to think that 5 April—the day on which they could be implemented—might also be a significant day in the life of this Parliament, to put it delicately. In which case this seems to be a last minute rush through. Although we are not in precise terms introducing a no-win, no-fee principle, it is mighty close to it. What is worse, lawyers will be asked to make a judgment well in advance as to whether that is likely to be the case. It is a sort of anticipated no-win, no-fee principle. That is an unfortunate risk. This is a premature sledgehammer to crack a possibly diminishing nut. I hope that the Minister will at least to be able to answer the very considerable concerns that the hon. Member for Woking and I have expressed.

5.7 pm

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Prepared 22 March 2005