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Public Bill Committee Debates

Draft Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007



The Committee consisted of the following Members:

Chairman: Dr. William McCrea
Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)
Baird, Vera (Parliamentary Under-Secretary of State for Constitutional Affairs)
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Dorrell, Mr. Stephen (Charnwood) (Con)
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Flello, Mr. Robert (Stoke-on-Trent, South) (Lab)
Foster, Mr. Michael (Worcester) (Lab)
Foster, Michael Jabez (Hastings and Rye) (Lab)
Gauke, Mr. David (South-West Hertfordshire) (Con)
Hands, Mr. Greg (Hammersmith and Fulham) (Con)
Hughes, Simon (North Southwark and Bermondsey) (LD)
Kidney, Mr. David (Stafford) (Lab)
Linton, Martin (Battersea) (Lab)
Reid, Mr. Alan (Argyll and Bute) (LD)
Snelgrove, Anne (South Swindon) (Lab)
Southworth, Helen (Warrington, South) (Lab)
Waltho, Lynda (Stourbridge) (Lab)
Hannah Weston, Sara Howe, Committee Clerks
† attended the Committee

Third Delegated Legislation Committee

Wednesday 18 April 2007

[Dr. William McCrea in the Chair]

Draft Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007

2.30 pm
The Parliamentary Under-Secretary of State for Constitutional Affairs (Vera Baird): I beg to move,
That the Committee has considered the draft Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007.
The Chairman: With this it will be convenient to consider the draft Legal Aid (Asylum and Immigration Appeals) (Northern Ireland) Regulations 2007.
Vera Baird: These are obviously two different sets of regulations. The first set relates to England and Wales and introduces amendments to a retrospective funding scheme that has been in place since 2005. The other set relates to Northern Ireland and introduces a similar retrospective funding scheme to that which currently operates in England and Wales. Due to their similarities, it causes no one any difficulty that the Committee has agreed to consider them in one debate. Both have been the subject of consultation with key stakeholders and I believe that the changes proposed are useful and necessary.
Both sets of 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 makes provision for the High Court and the Asylum and Immigration Tribunal to order payment of an appellant’s costs for a reconsideration of a tribunal decision, and any pursuant review to the High Court, out of the community legal service fund. These regulations set out the statutory framework for the procedures to be followed by the tribunal when retrospectively awarding legal aid for challenges to its decisions. The regulations prescribe the precise circumstances in which costs can be paid.
I should first explain why we are making the regulations. A retrospective funding scheme for challenges to the decisions of the Asylum and Immigration Tribunal was introduced by the principal regulations in England and Wales in April 2005. The aim was to combat what was strongly perceived to be abuse of the appeals process and to reduce the number of weak applications being pursued through that system. Under the scheme then introduced, legal aid is awarded at the end of the process and not at the beginning, usually when the appeal has been considered. The intention behind that is pretty obvious. Some risk should be borne by lawyers. If they pursue a case which the tribunal or the High Court ultimately decides is utterly without merit, they will not be paid.
The scheme was part of a comprehensive package of reforms. Since its introduction in England and Wales, a number of operational issues have arisen which these regulations seek to address. Specifically, the regulations give effect to section 8 of the Immigration, Asylum and Nationality Act 2006. That extends the power of the tribunal and gives judges the power to make a costs order for preparation work that legal representatives have done for a reconsideration that has been ordered, but in the event does not proceed. That may happen because the Home Office concedes the appeal, the appeal has to be treated as abandoned or the appellant withdraws the appeal.
Under the current provisions, at the reconsideration stage, a decision is taken on the application to reconsider and funding can be awarded by the tribunal for costs incurred in making the application to reconsider, and also in relation to the work carried out for reconsideration itself. However, the tribunal’s powers to award costs for the substantive reconsideration are triggered only once the reconsideration has taken place— that is, it is triggered retrospectively.
If no order for reconsideration is made by the tribunal, the appellant may, on refusal, apply to the High Court, which may direct that there be a reconsideration. However, at that review stage, funding can be awarded only for costs incurred in making that review application. As the tribunal’s powers are triggered only once the reconsideration has actually taken place, it creates a problem in relation to cases which are withdrawn or conceded after a reconsideration is ordered and a representative has carried out some preparatory work before it takes place.
To summarise, let us suppose that someone gets a decision they do not like from the AIT, they apply for the AIT to reconsider that decision, and a decision is then taken. If it is refused the lawyer will be paid for having prepared the application, but if it is accepted and the lawyer goes ahead with a reconsideration, that lawyer can be paid for the work on the reconsideration only after it has been heard, on the retrospectivity principle. Consequently, if the reconsideration is never heard because it is abandoned, the lawyer does not get paid for his preparation. The regulations are being introduced in order to fill that gap.
There is another analogous gap. Let us suppose that I have had a refusal and want the tribunal to reconsider its decision. I put in an application for reconsideration, which is refused. At that point I can go to the High Court, which can tell the tribunal that it should give me a reconsideration. I have a reconsideration but my lawyer cannot be paid for it until it is finished, on the retrospectivity principle. If that reconsideration does not go to the end because it is abandoned or conceded by the Home Office, the lawyer is not paid. The England and Wales regulations are intended to fill those two lacunae.
To avoid any unfairness, the Legal Services Commission has agreed in the interim that suppliers in the gap, if I may put it that way, are paid for costs reasonably incurred, but they are subject to assessment by the LSC. That is not a satisfactory, long-term solution, so regulations 2 and 3 of the England and Wales regulations bring those cases within section 103D arrangements. The tribunal will have the power to make an order for costs for the preparation of a reconsideration that has been ordered but does not take place either before or after a High Court review.
Regulation 2 amends the principal regulations to remove a provision for the appropriate court to make a section 103D order for payments in respect of an application for review where a reconsideration has been ordered but does not take place. It is no longer required because it is replaced by these regulations.
Regulation 3 amends the principal regulations to provide the tribunal with the power to make a section 103D order in circumstances in which a reconsideration has been ordered but has not taken place. Regulation 3 also specifies the circumstances in which such an order may be made and the criteria that the tribunal must apply before making the order.
Regulation 4 allows a review of the tribunal’s decision not to award costs under section 103D under the new regulation, and extends the current availability of a review of the tribunal’s refusal to pay costs to cover the gap being filled by the proposal, so it is consequential.
Regulation 5 is different. It provides for the High Court or the tribunal to give reasons for its decisions where it decides in special circumstances to make a section 103D order excluding either counsel’s or solicitor’s fees. That is where a partial costs order is made and the tribunal or the High Court decide that only part of the fee claimed is due.
Regulation 5 requires reasons to be given for a decision to give only partial costs. It applies across the board, not merely to the gap being filled today. It is somewhat broader than the rest of the regulations in this small bundle that we are considering.
There is already a requirement for the tribunal to give reasons where it refuses to make a section 103D order. Regulation 5 also makes provision for the circumstances in which more than one supplier has acted for an appellant during the course of the review or reconsideration. In other words, it allows a section 103D order to be made in appropriate cases, even though there has been more than one supplier. Such a situation occurs when people are dispersed to different areas and the supplier changes because the geographical location of the applicant changes.
As these changes do not substantially alter the current legal aid section 103D arrangements in England and Wales, we undertook only a short consultation in December with four key stakeholders—the Immigration Law Practitioners Association, the Legal Aid Practitioners Group, the Law Society and the Bar Council—and, unsurprisingly, there were no objections in principle.
I turn to the draft Legal Aid (Asylum and Immigration Appeals) (Northern Ireland) Regulations 2007. As I am sure hon. Members are aware, the Asylum and Immigration Tribunal is a UK-wide tribunal. Although the weight of cases before it arise in England and Wales, to be consistent we are also introducing similar provisions in Northern Ireland. The arrangements for Northern Ireland are slightly different technically because the legislative basis for legal aid there is different from that in England and Wales.
The consultation on the retrospective funding scheme as a whole took place in Northern Ireland in 2005. Some reservations were expressed along similar lines to those that had been expressed before its introduction in England and Wales, and after consultation it was decided to delay the introduction of that whole retrospective scheme until it had bedded down in England and Wales and any subsequent operational issues had been addressed. They are being addressed today by the first set of draft regulations that we are considering.
As there had already been consultation in Northern Ireland in 2005 on the retrospective scheme, there was only a short consultation in January and February. Consultees were asked to comment on the revised regulations, which took account of the responses to the initial consultation and addressed the issues. As in England and Wales, there were no objections in principle to the revised legislation.
The Government consider that this is a proportionate response to the problem that has existed of abuse within the appeals system and that it strikes appropriate balances. With that hopefully clear and helpful explanation, I commend the draft regulations to the Committee.
2.43 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship, Dr. McCrea. I am grateful to the Minister for her explanation. I wanted to put about 15 detailed, technical points to her, which could have taken some time, but I shall not now do so because she was so comprehensive and thorough in her explanation that they have all been answered. That is good news.
Mr. Tobias Ellwood (Bournemouth, East) (Con): Put them anyway.
Mr. Bellingham: I shall not do so, although I have a couple of additional points to make. I should be grateful if the Minister commented on the consultation process that she mentioned. She said that it was, by definition, fairly specialist and that because this is a specialist, complex area, the Government decided to consult only a limited number of specialist organisations and there was no wider public consultation. Will she explain why that is? We are talking about a measure that Conservatives support—I cannot speak for the Liberal Democrats—because it makes sense and there is a degree of good practice incumbent in it. The Minister is saying that legal aid will be awarded at the end of the appeal, which will concentrate the minds of solicitors and appellants, and will hopefully prevent a number of vexatious cases being taken.
One should not be in any doubt that this is a tough measure and that it will have an impact on people who are taking cases through the tribunal appeal system. It will certainly have an impact on some of the more vulnerable people in society and it may well be that some genuine cases will be caught by it. We would say that that price has to be paid to make sure that the system does not get out of control and that there is no unnecessary or unjustified recourse to the legal aid budget. However, one has to accept that some hard-luck cases will be involved. Will the Minister comment on why there was not wider public consultation?
Does the Minister have any idea about the savings to the legal aid budget? Obviously, that is highly pertinent in the context of the Government’s policy on legal aid, of the impact of their proposals, which are going through as we speak, and of the pressure on that budget. What savings do the Government anticipate will come from the two fairly modest measures that we are discussing today? Will they involve a few thousand pounds or more than that? Perhaps she will elaborate further, as she mentioned nothing about that.
We have been debating the Tribunals, Courts and Enforcement Bill, a part of which is about the unification of the whole tribunal system. Under the 2004 Act, the immigration and asylum appeals system was unified into a single-tier appeal system with a limited onward review or appeal; the regulations refer to that Act. Presumably, the Tribunals, Courts and Enforcement Bill will pass through Report and Third Reading in the near future and Her Majesty will give Royal Assent. What will be the impact of the 2007 legislation on the 2004 legislation and the unification of the two types of appeal system? Will the Minister comment briefly on that?
Vera Baird: I just want to understand the hon. Gentleman’s last point. Did he ask what impact the regulations would have on the earlier legislation? There is no 2007 asylum legislation. As I understand it, he is asking me about the regulations.
Mr. Bellingham: Let me make myself clear. What I was getting at was that when the Tribunals, Courts and Enforcement Bill becomes an Act, a part of it will focus on the unification of the tribunal system. The issue is obviously important, because the whole tribunal system will be reformed and altered by that legislation. What impact will that have on the 2004 Act and the regulations that flow from it, with which we are dealing today?
Having made those few remarks, I thank the Minister for her courtesy and full explanation. I say again that we Conservatives support the two measures.
2.48 pm
Simon Hughes (North Southwark and Bermondsey) (LD): I welcome you to the Chair, Dr. McCrea. I shall be brief. We shall support the regulations. I have just one question, which follows from the one that I hope the Minister and those advising her will have anticipated, because it was raised yesterday when the regulations were debated in the House of Lords. There was a short intervention by my noble Friend Lord Avebury, who asked about the current system.
I understand the proposal and my question has two simple parts. First, so far, how often has there been a disallowance of legal aid when cases have gone on to appeal and have gone all the way and the retrospective system has applied? How often has the rule that says, “This was unmeritorious and inappropriate, therefore you will not get paid for it,” been applied? Has it been applied to fewer than 10 cases a year, to between 10 and 100 or to between 100 and 1000? I have no idea, and the Minister in the House of Lords could not give an answer in time yesterday.
Secondly, given that the regulations apply to England, Wales and Northern Ireland and have been welcomed across the Committee, will the Minister tell us what financial impact she expects them to have? I realise that we are talking about small and relatively occasional instances, but are we talking about £1,000 or £10,000? What sort of ball park figure is the best estimate that officials have been able to give Ministers of the impact in one financial year, once the arrangement comes into operation?
2.50 pm
Vera Baird: Perhaps I may deal first with the remarks of the hon. Member for North-West Norfolk, for whose welcome to this small measure I am grateful. We are not currently introducing the retrospective payment of legal aid. That was introduced in 2005, and has been functioning ever since. That is implicit in the question that the hon. Member for North Southwark and Bermondsey just asked.
All that the regulations do is fill a gap, which was arguably an unfair one to practitioners functioning in the relevant area of law. After an unsuccessful application to the tribunal, if those practitioners applied for a review, they were paid if the answer was “No, you can’t have one.” However, if the answer was “Yes, you can have a reconsideration of the tribunal’s opinion,” they were not paid for that part of their work, following on from consent, until the end of the reconsideration, following the retrospective principle. That appears satisfactory, but the difficulty arises, as I have said, when the reconsideration or review does not go to the bitter end. A retrospective award of costs is not then available, because the process has been abandoned before getting that far. In that situation lawyers—a very few, I think, because I do not think that this has happened very often—were not being paid. That is the gap that we are trying to fill, and that is all that we are trying to do.
After that further explanation, the hon. Member for North-West Norfolk can probably appreciate why the consultation was, on this occasion, very narrow. It concerns only lawyers’ pay for a very small area of proceedings. It would have been redundant to consult any more widely. Obviously, and as he will appreciate, prior to the 2005 legislation that introduced the whole retrospective payment of legal aid in the relevant forum, there was far more extensive consultation. I hope that that is a satisfactory answer to his question.
I think that the hon. Gentleman then asked me about the likely financial impact of the regulations. If he is interested in knowing—and from what he said I suspect that he is—the impact on the legal aid fund of the saving that has been made since retrospectivity was introduced, I shall write to him with the best answer that we can give. It is, however, quite a difficult one, because we will not know how many cases would have been brought if that had not been brought into play. The impact of the regulations before the Committee is likely, obviously, to be a small cost to the legal aid fund, but it is unlikely to be of great significance.
The hon. Gentleman asked me what the impact of the Tribunals, Courts and Enforcement Bill would be on the jurisdiction of the AIT over the retrospective award of legal aid that currently prevails, and on the regulations specifically. I think that the correct and full answer is that it will have no impact at all, because, as we discussed while the Bill was in Committee, when he and I were in our current roles, the AIT is outside the unified tribunal system, although it has the benefit of the support of the Tribunals Service.
So far as savings to the legal aid budget from retrospectivity since 2005 are concerned, I understand that there will be a review to assess how matters have been working generally, which in the summer will consider savings. Any letter that I write now to the hon. Gentleman will therefore contain only a partial answer, but I shall be able to give him more after the review.
For the sake of completeness, I should perhaps indicate why the consultation in Northern Ireland was a small-scale one. The reason was that there had already been a more extensive consultation in 2005 on the regulations, which were at that stage intended to introduce retrospective payment of legal aid in Northern Ireland, so there has been a parallel process. In England and Wales there was consultation prior to the legislation that brought in retrospective payment. The same occurred in Northern Ireland, but implementation there has been delayed, whereas the regulations are already in force in England and Wales. The small flaws in the system have been discovered in England and Wales and are being corrected, and the corrections are being included at the same time in Northern Ireland legislation.
I hope that that has dealt comprehensively with what the hon. Gentleman wanted to know, and I am grateful to him for his support.
The hon. Member for North Southwark and Bermondsey asked me how often legal aid has been disallowed in the case of appeals that have gone the whole length but have been found unmeritorious. My guess is that there are not many such cases, because the purpose of disallowance is deterrent rather than penal. However, he is right to say that the question was raised yesterday in the other place, and we are currently researching the best answer. We shall write to him at the same time as writing to Lord Avebury. We do not anticipate that filling the small gap will involve great cost, and we shall do our best in relation to an estimate for the year of performance.
Assuming that the Committee is now content to approve the motion, I thank hon. Members for their help.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007.

DRAFT LEGAL AID (ASYLUM AND IMMIGRATION APPEALS) (Northern Ireland) REGULATIONS 2007

Resolved,
That the Committee has considered the draft Legal Aid (Asylum and Immigration Appeals) (Northern Ireland) Regulations 2007.—[Vera Baird.]
Committee rose at two minutes to Three o’clock.
 
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