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Lord Goodhart: I find myself naturally somewhat disappointed with that answer. The test of priorities is one that has to be applied in deciding which types of case should have priority, but there should also be sufficient flexibility to enable cases of particular hardship within types of case which in general have a lower priority to be promoted up the scale. While I accept that this is a type of case where it would be relatively rare for the CLS to fund proceedings, I still think that it would be best to keep that type of case in so that, where appropriate, it could be funded. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 97 to 99 not moved.]
Lord Goodhart moved Amendment No. 100:
The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 101, 102 and 104. They propose to include in Schedule 2 a number of additional tribunals for which public funding would be possible. The effect of paragraph 5 of the schedule is that services consisting of the provision of representation are excluded except those specified in sub-paragraph (2). Sub-paragraph (2) broadly maintains the present courts and tribunals in which representation is possible.
One of the main drawbacks to the present system of legal aid has been that it has never extended to tribunals which decide many cases of great importance to people who cannot afford legal help out of their own pockets. The Bill retains the possibility of public funding for two tribunals where it is now available--the Employment Appeal Tribunal and the Mental Health Review Tribunal. However, it excludes public funding where legal aid is now available for hearings before the Lands Tribunal or the Commons Commissioners. I accept those exclusions. It also appears to exclude the existing right of representation before the Discretionary Lifer Panels, which consider applications for release on licence from prisoners who have been given life sentences for offences for which a life sentence is not the sole mandatory sentence. Those proceedings are not covered by paragraph 5(2) of Schedule 2, but, equally, do not appear to be criminal proceedings. Aid is now provided by way of the ABWOR scheme for representation. Aid should be provided in such cases and I hope that it has been omitted by way of an oversight.
Paragraph 5(2) does not extend rights of representation to any tribunals which do not have them now. There is no representation for tribunals dealing with employment matters. I must apologise for having used in my amendment the old description of them as "industrial tribunals" rather than the current one of "employment tribunals". It does not provide any representation before the tribunals under the Social Security Act 1998, or before the Social Security Commissioners, or before immigration and asylum tribunals. The rejection of a case before any of those tribunals may be devastating to the claimant. It may lead to a loss of livelihood, it may lead to extreme personal hardship, and in an asylum case it may lead to an applicant being returned to a country where he or she will suffer a grave risk to their life. Representation is extremely valuable. It is clear that claimants who are represented before employment tribunals through, for example, their trade union, or social security claimants who are represented through advice agencies, have a much better chance of success.
I believe that it is the Government's intention that, as and when the costs of existing services are brought under tighter control, it will be possible to modify Schedule 2 to allow an extension of services to these tribunals. But I do not think that that mere statement of intention is good enough. I believe that the Bill should
It is true that the commission is supposed, under Clause 5, to inform itself of the need for services and to plan how to meet that demand. Obviously, it cannot investigate the need for services which by law it cannot provide. It is only if representation before tribunals is not excluded that the commission can inform itself of the need for representation and plan how those needs can be satisfied. The commission should start on that right away. Representation before tribunals on employment, social security and immigration matters at present form the greatest pool of unmet need for legal services. They should not be excluded by Schedule 2 so that phasing in can begin now for how those services are to be incorporated into the scheme of the community legal service fund. I beg to move.
Lord Archer of Sandwell: Amendment No. 103, in this group, bears my name. It proposes that a further item should be added to the list of proceedings which may be funded as part of the community legal service for the purpose of representation; namely, proceedings before immigration adjudicators and the Immigration Appeals Tribunal. The noble Lord, Lord Goodhart, got there first. So I am content to support his amendment and not to move my own.
The reasons that it would be unfair and unjust to exclude those proceedings from the benefits of the scheme were touched upon by the noble Lord. Perhaps I may briefly elaborate. As the noble Lord said, those who are concerned in these proceedings have very serious matters at stake, sometimes their lives. They are frequently unfamiliar with the English language. It is possible to give evidence with the assistance of an interpreter, but it is very difficult to conduct one's own case using an interpreter. Often, such people are unfamiliar with tribunal proceedings, or indeed any proceedings at all, certainly in the United Kingdom. They are unlikely to know the intricacies of the legal provisions that are at the very core of the issues to be decided.
I take this opportunity to pay tribute to the adjudicators and the chairmen and members of the Immigration Appeals Tribunal, most of whom are totally dedicated and grapple with the difficulties to produce a just result. But unskilled representation in those conditions is no substitute for justice.
Sometimes of course such people are represented at the expense of their families; and sometimes by advocates from outside the legal profession. That representation may be very competent. It is within my knowledge that the Immigration Advisory Service and the Refugee Legal Centre make a commendable contribution to the process, as do law centres. However, some appellants, unfamiliar with the procedure, fall into the hands of charlatans without qualifications,
However, I confess that, like the noble Lord, Lord Goodhart, I had an ulterior motive in tabling this amendment. We may all make suggestions as to meritorious additions to the list. I was anxious to make a more general point--one which I believe will find some sympathy with my noble and learned friend the Lord Chancellor, even if he cannot respond positively to all the specific suggestions in this group. I am grateful to the noble Lord, Lord Goodhart, for ventilating the subject in general.
I must declare an interest. I am privileged to be chairman of the Council on Tribunals--a matter that is known to my noble and learned friend as, together with my noble and learned friend the Lord Advocate, he appointed me.
When I first came to the Bar, tribunals were the poor relations. The questions with which they dealt were perceived as marginal. It was said in their favour that they were less formal than the traditional courts. So indeed they were. But that very virtue was conceived as ensuring that they administered second-rate justice. I must confess that the period of which I am speaking falls not within history but archaeology! It was before the Franks Report in 1957.
One important consequence was that, almost if not totally without exception, proceedings in tribunals were not considered worthy of legal aid. Now, in terms of numbers, they deal with the major part of our justice system. At the last count, the number of tribunal systems that fell within the supervision of the Council on Tribunals was 78, bearing in mind that some of those jurisdictions embrace a variety of situations and issues. The citizen is six times more likely to encounter our system of civil justice in a tribunal than in the more traditional courts. Some deal with very large sums of money. Many deal with matters of vital importance to those who come before them. The law that they dispense is often exceedingly complicated and requires a high degree of expertise. The president or regional chairman is often of a status at least equivalent to that of a senior circuit judge; in fact, sometimes it is a senior circuit judge.
I hope that in the foreseeable future there will be a new acronym in the language--SCROCG--which stands for the Standing Conference on the Resolution of Citizens' Grievances. It arises out of an international conference which took place in 1997 at the University of Bristol, and, happily, was sponsored by my noble and learned friend's department. Much of the credit for it goes to Professor Martin Partington. The purpose of establishing it is to review the many decisions that are now taken in our system of administrative law where the citizen may need to know in which direction he should go for redress.
My noble and learned friend has recognised some of these points already in the schedule, which includes mental health review tribunals. I shall not make a false point about the Employment Appeal Tribunal because that is in a special position. The noble Lord, Lord Goodhart, has suggested other candidates for the list, and I support those candidates.
I hope that the culture in which tribunals were often seen as the harijans of the system will not find its way into the legal services commission, and that even if my noble and learned friend does not feel able to respond positively to all these amendments, the seed will germinate and--who knows?--possibly bear fruit in the future.
Lord Meston: I support the amendment and strongly support the remarks of the noble and learned Lord, Lord Archer. There seem to me to be four main reasons for advocating representation supported by the state in some form or other before tribunals.
Before tribunals, the imbalance between the represented employer and the unrepresented employee, or former employee, is usually most pronounced. If ever there were a case for equality of arms, it is in tribunals. Secondly, over the years the law that was intended to be straightforward and simple, particularly before industrial tribunals, as they were then called, has become increasingly complex. That is partly the fault of Parliament in enacting employment Bills of one kind or another year after year. However, it is not merely a question of legislation coming from Parliament but of that coming directly from Europe. Thirdly, as both my noble friend and the noble and learned Lord said, the issues and their outcome can be of great importance to the individual concerned. Fourthly, the unrepresented applicant who has no recourse to a union, and who will therefore be tempted to represent himself, may fall prey to the so-called experts in representation who hold themselves up as representing applicants to tribunals and who are in some cases, as the noble and learned Lord accurately described, charlatans. They often have their own agenda; they often do more harm than good to the individual concerned; and they are not accountable to any professional body for their conduct. In areas involving particular expertise such as race and sex discrimination cases, and nowadays disability discrimination, expertise is most important for the effective presentation and defence of a claim. For those reasons I strongly support the amendment.
Page 54, line 28, at end insert--
("( ) proceedings before industrial tribunals,
( ) proceedings before appeal tribunals constituted under the Social Security Act 1998,").
4.45 p.m.
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