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Lord Filkin: My Lords, in responding to an interesting debate, it may be helpful if I start by emphasising what the Government are seeking to do under Clause 14 in this respect.

Essentially, and for reasons which will be well known to the House, we think that there is a need for and merit in a single process in the new Asylum and Immigration Tribunal to deal with issues, rather than a second two-stage process. However, the House and others have made representations to us that the ouster of judicial review went too far and did not allow an adequate supervision by the higher courts of points of law or failures by the tribunal.

Therefore, in the amended Clause 14 we are seeking to ensure that the single-tier tribunal, the AIT, has the capacity, skills and competence to deal with these issues, but allow an opportunity, when there appears to have been a case where there is an error in law, for that to be considered by a higher court, normally the High Court and, if the judge hearing that case believes that an error in law has been made, to send that back for reconsideration.

We are not trying to reconstruct a two-tier process built on the AIT—for very good reasons, because that would in large part take us back to where we are at present.

That is why we are not sympathetic to Amendment No. 45. The noble Lord, Lord Goodhart, suggests a requirement for the High Court or Court of Session to determine review applications by reference to the written submissions of all parties to the appeal, and not only the written submissions of the applicant. That effectively puts the High Court—if the High Court is hearing it—in the position of deciding on the substance of it. That is not what we want to do, and for good reason.

It is important to recognise that new Section 103A has been drafted to reflect the fact that the review procedure will be ex parte: in other words, if a person who has agreed with the decision of the AIT has an opportunity to direct to a higher court a challenge that there has been an error of law by the AIT, and if the judge in that case is persuaded by that to direct a reconsideration.

The current permission stage to the AIT and the statutory review procedure under Section 101 of the 2002 Act, for similar reasons, are both ex parte and we think that it is necessary and right to continue with this.

Requiring the High Court to determine review applications by reference to the written submissions of all parties to the appeal would effectively put it in the position of determining the appeal, would add delay to the process, and is unnecessary.

It is also undesirable for other reasons. One of the problems experienced has been that the High Court has been swamped by appeal applications of this type. That has put an inappropriate burden on the High Court. Therefore, the procedure as crafted by new Section 103A allows for the proper exercise of High Court supervision on points of law, but does not take
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away from the specialist tribunal the reconsideration of those matters. In other words, it has been carefully crafted—we believe for good reason.

If the High Court or a senior member of the tribunal considers that there may have been an error of law and orders a case to be reconsidered by the tribunal, at that point all parties to the appeal will have the opportunity to make written and, if appropriate, oral representations. We therefore believe that the provision is well constructed. The substantial hearing, if there has been a finding on a point of law, is back into the tribunal following the determination by the High Court judge.

Amendments Nos. 46 and 57 will enable the High Court or the Court of Session to direct how the tribunal should be composed when it reconsiders an appeal. As it stands, the president of the AIT will direct the composition of the tribunal under paragraphs 7 and 8 of Schedule 1 of the Bill. We believe that is where that discretion should lie.

We agree that the reconsideration process will need to vary. Some appeals will be best reconsidered by a full hearing but, for others, this may not be necessary. Some appeals will require a panel of judges to hear them, because it is seen by the president as potentially a pivotal case that will set a precedent relevant to other cases. In such circumstances one would expect that there would be three judges in the AIT hearing such a case. In other cases it will not be so, and therefore we believe that the president should take into account any recommendations made by the High Court or Court of Session but should have the discretion within that to make a determination on how best the appeal should be reconsidered in the AIT, depending on the particular circumstances. Ultimately, the president is best placed to take these decisions on the deployment of judiciary within the tribunal.

This has been a helpful debate. I do not think that I have replied to the point made by the noble and learned Lord, Lord Ackner, as to why the High Court should not be given the power to reverse. I may have done so in passing, because I have signalled that it is a different function for the High Court. It is not to hear the substance but to hear whether it considers that an error in law has been made. As the noble and learned Lord, Lord Donaldson, helpfully signalled, that does not imply that in every single case—even where an error of law may have occurred—the reconsideration decision will automatically be reversed. It will depend on the circumstances of the case.

I hope that my comments have been helpful to noble Lords who have spoken to the amendment.

Lord Goodhart: My Lords, I am not wholly unsympathetic to the Government's view. I do not think that it would be appropriate for the judge to turn what is, in effect, an application for leave to appeal into a substantive hearing. I understand that and the amendment was not intended to achieve it.

Although the Government have taken some care to avoid saying so, they are trying to create an internal appeal system within the tribunal itself in which, if the case arises in England, the judge of the High Court effectively gives leave to appeal from one part of the
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tribunal to another panel or individual within the tribunal. It is a fairly ingenious way of handling the issue. From the Government's point of view it has the advantage that, albeit the leave to appeal—if one can call it that—is given as part of the jurisdiction of the High Court, it is not in itself subject to judicial review.

Amendment No. 46 would save time because a judge could say, "Having looked at this matter on an ex parte basis, it seems to me that there is plainly something that needs to be looked at seriously". That would avoid the delay involved in having to refer the papers to the president of the tribunal and he or she having to read up the papers and come to a decision as to what is the appropriate form of the tribunal.

However, I am also aware that, unlike the previous group of amendments, a refusal to accept these amendments will not lead to any injustice in the procedure. In those circumstances, I do not wish to press them further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Lord Filkin moved Amendment No. 46A:

"103D RECONSIDERATION: LEGAL AID (1) Subsection (2) applies where the appropriate court has made an order under section 103A(1), or a reference under section 103C(1), on the application of an appellant under section 103A. (2) The appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22). (3) Subsection (4)"

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 47:

The noble Lord said: My Lords, I was expecting a slightly more substantial speech from the Minister. However, I am happy that he should leave that until he responds to this amendment, which is grouped with Amendment No. 46A.

We do not object to Amendment No. 46A and have not sought to do so; we welcome it so far as it goes. It will undoubtedly fill a lacuna if it gives the court which hears an application for an order to reconsider the power to order the payment of the costs of that application. The problem is that Amendment No. 46A does not go nearly far enough.

Once the High Court has ordered reconsideration, it seems plain to us that legal aid should be granted for that reconsideration. The High Court will not order reconsideration unless there is at least an arguable case that there has been an error of law; nor will it order reconsideration if it is apparent that that error of law makes no difference because the case is hopeless on the basis of the facts or on some other legal issue.
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However, we believe that it is essential that the appellant's lawyer should know that if the case is reconsidered, he or she will receive legal aid for appearing in the case. Of course, if the lawyer in some way misconducted himself or herself by misleading the court and concealing material facts, he or she would be deprived of the right to legal aid anyway. But the Government are suggesting, basically, the extension of no win/no fee litigation to asylum and immigration cases.

No win/no fee funding may be here to stay for civil actions for damages—that is an entirely different matter—but it is completely inappropriate for litigation of this kind between an immigrant and the state, with terrible potential damage to the immigrant if he or she is wrongly sent home. I was horrified by the noble and learned Lord the Lord Chancellor's suggestion in Committee that "success fees"—that is, an uprating of the fees that would be otherwise due—could be paid where a decision is overturned on reconsideration. If an application is strong enough to justify an order for reconsideration, the appellant is entitled as a matter of justice to have the case presented by a lawyer who has been paid to do the job.

Amendments Nos. 47, 48, 48A, 49 and 50 tackle this issue in two different ways: one way is through Amendment No. 47; the other way is through the remainder of the amendments. Amendment No. 47 seeks to remove the whole of the new Section 103D of the 2002 Act. Its purpose is to ensure that legal aid for applications and reconsiderations should be provided in the normal way, with none of the special restrictions imposed by the Bill.

Amendment No. 48 is something of a compromise. It would retain new Section 103D but require the tribunal to make an order for legal aid unless it is satisfied that there were no reasonable grounds for making the application. It would eliminate all the issues we discussed in Committee about near misses. A lawyer with reasonable grounds for making the application would not lose his or her fees on the grounds that the miss was not quite near enough.

Amendment No. 48A would require the tribunal to give reasons for refusing legal aid. If those reasons were irrational, the decision could be reversed. Amendments Nos. 49 and 50 back up Amendment No. 48. They would remove the provisions for payment by results.

We believe that the test—and the only test—for the grant of legal aid should be whether there are reasonable grounds for seeking reconsideration. If there are reasonable grounds, it would be wrong to deprive the appellant's lawyers of the fees because they are unsuccessful when the reconsideration takes place.

I find the attitude of the Government to legal aid in these cases extraordinary. They have failed to take into account measures that have already been put in place to curb the abuse of legal aid, which I recognise has happened in asylum cases. Such measures include the fact that decisions on appeal funding have been taken in-house by the Legal Services Commission since last April; the fact that nearly 100 poor-quality firms have had their
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Legal Services Commission contracts terminated; and the fact that a compulsory accreditation scheme of the Law Society will come into force in April of next year. Those measures are surely sufficient to justify treating legal aid for leave of appeal to the AIT in the same way as any other cases and for hearings for reconsideration.

The Government have not so far said that criminal defence lawyers will be paid only in cases where their clients are acquitted, yet the wrongful refusal of asylum can have consequences even more damaging than a wrongful conviction for crime.

The way in which the Government have treated the right to legal aid in this case is plainly wrong and it needs fundamental alteration. I beg to move.

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