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Lord Filkin: My Lords, I give an undertaking to the House that when I have finished what I have to say and if I have not addressed certain points, I shall be grateful to receive interventions. However, I hope that the House will have patience with me until we get to that point of failure rather than assuming that I am failing on it already.
I was seeking to explain why a success fee achieved the right balance in view of the fact that a lawyer would take on a level of risk on an individual case. The noble Lord, Lord Kingsland, is right that it is not like a conditional fee agreement, which involves an insurable risk, and that it is unlikely that the appellant himself would be in a position to reimburse the lawyer in the vast majority of such situations. It stands to reason that that is the situation.
We shall discuss the level of the success fee with the professions. Essentially we want to discuss what is likely to be the level of uplift on a fee that would ensure an adequate supply of good lawyers prepared to bring cases to review in this way. That is a consultation process that we cannot currently have, but it will be fundamental to crafting this accurately to get the balance right so that good lawyers will make judgments that they will take cases. They may lose on some but they will know that if they exercise good professional judgment they will get adequately remunerated over a period of time. We do not want a
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situation such as the current one, where bad lawyers will not be in any way limited from taking forward unmeritorious cases.
I turn to government Amendment No. 46A, in conjunction with government Amendments Nos. 47A. 48B, 49A and 50A. This enables regulations to be made under Section 103D to make provision for the High Court to order legal aid to be paid. In Committee, the noble and learned Lord the Lord Chancellor outlined this component of the proposals for new legal aid arrangements.
The High Court will also have the power to order the costs of an application under Section 103A to be paid if it orders the tribunal to reconsider its decision on an appeal or if it refers a case to the Court of Appeal. This proposal is important so that we can design the scheme flexibly. For example, if a case raises a question of law of such great importance that the High Court refers it to the Court of Appeal, it is appropriate that the High Court should have the power to order the costs of the review application to be paid. Government Amendments Nos. 47A, 48B, 49A and 50A are consequential to government Amendment No. 46A.
Government Amendment No. 58A makes the regulation-making power for new legal aid arrangements in Section 103D subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee recommended that the regulation-making power should be subject to affirmative resolution and in Committee the noble and learned Lord the Lord Chancellor said that he would bring forward an amendment to this effect.
I now turn to the question of the noble Lord, Lord Goodhart, about legal aid being paid only at reconsideration. The merits of a case will often come to light only when the case is fully tested and explored by the tribunal. The panel at the reconsideration will be best placed to order legal aid if a successful or near-miss application has been made. The High Court judge can order payment in exceptional circumstances.
The noble Lord, Lord Avebury, raised questions about the Medical Foundation cases. We are asking lawyers to focus on the fundamentals of cases and whether errors of law have affected the outcome of the cases. If they consider that a genuine case should succeed, they will be given legal aid if the case succeeds or is a near miss. As I signalled, the uplift mechanism will not deter them from taking cases that they consider have merit.
The noble Lord also spoke about no win, no fee costs being unprecedented for cases affecting human rights. It is already the position that conditional fee agreements are used in relation to judicial review proceedings, which frequently include issues of human rights. I should emphasise that we are talking about public funding only, not cases that are privately funded.
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The noble Lord, Lord Clinton-Davis, and other noble Lords raised the question of why the LSC's applied merits test is not good enough. Any LSC-applied merits test will delay the review and reconsideration procedure. The test applied beforehand is hypothetical. We consider it entirely justifiable for the test to be applied by judges at the conclusion of cases. Judges are best placed to make a proper judgment on whether cases had merit because they succeeded or because they were close enough, or that there were other circumstances that they judge appropriate.
We are facing a real problem about how we get meritorious cases brought forward without over- incentivising the system so that cases without merit continue to be brought to appeal. I think that the way that we have crafted this after consultations is right, workable and will meet the test of justice.
Lord Bassam of Brighton: My Lords, I remind the House that interventions should be only for elucidation and that once the Minister is on his feet, he should be responding to points. The only person who can speak thereafter is the mover of an amendment.
As I understand Amendment No. 46A, these reconsideration of legal aid provisions apply only where the court has made an order of recommitment to the tribunal or to a higher court. It does not apply where the application has failed. It seems to apply only if the application for reconsideration has succeeded. Is that right?
Lord Goodhart: My Lords, I regard the Government's response to our amendments as deeply disappointing. I am also seriously concerned about some of the human rights implications. The Government are being illogical. They are not proposing to modify the present rules about the grant of legal aid for the first hearing before the tribunal. That is something that has undoubtedly been abused at certain times in the past, but I think that the Government recognise that, where a merits test is satisfied, it is necessary to grant legal aid for the first hearing before the tribunal. Of course, the number of first hearings is far larger than the number of appeals so
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that is the level at which the real cost is incurred and there will be no real saving on that from any of these amendments.
The Government are proposing to withdraw legal aid from only some cases of the making of an application and from cases of reconsidering following the making of an application where the application has been granted. We on these Benches are prepared to accept an amendment in a form that would mean that legal aid can legitimately be withheld in cases where there are no reasonable grounds for an application. What we find completely unacceptable is that legal aid should be withheld in cases were there is a reasonable ground for application, and not only withheld, but withheld retrospectively, at the end of the case, when the lawyer who has taken on the case has no guarantee whether that case is going to be successful.
The Minister referred to the need for more rigorous examination by lawyers. We are now facing a situation where a lawyer will have to say to himself or herself, "This case has a reasonable chance of success but it is not certain. I simply cannot afford to take that case without a guarantee of payment". Success fees are wholly inappropriate in order to deal with this situation. Success fees are about cases involving money. I perhaps go a little further than the noble Lord, Lord Kingsland, but I would be prepared to accept success fees in cases where money is at issue. In those cases a lawyer can, and indeed should, say, "You have a 50:50 or perhaps even a 55:45 chance of success but it will cost you far more money if you lose than you will get from it if you gain. It is not therefore in your interest, or in mine, to start these proceedings. Therefore, I am not going to take this case, which in the old days I would have taken because the test was whether it had a better than even chance of success". That sort of financial cost-benefit analysis is wholly inappropriate for asylum cases, as of course it would be in criminal cases.
I am not suggesting that one can equate asylum cases with criminal cases completely. In criminal cases, it has long been accepted, quite rightly, that a defendant in a criminal case is entitled to be defended by a lawyer who is paid through legal aid and can expect the lawyer to put forward a defence which is seen to have no reasonable chance of success whatever. We do not go as far as that in asylum cases. We are simply saying that an asylum seekersomeone who is an appellant in a case of this kind, seeking reconsiderationshould be entitled to have legal aid except in cases where there is no reasonable chance of success.
This is an issue about which I and my noble friends feel very strongly. So far as today is concerned, we are in a bit of a practical quandary because the noble Lord, Lord Kingsland, has made it clear that he is not at present in a position to support our amendments fully. It certainly seems to us, therefore, that the appropriate thing to do today is to ask the leave of the House to withdraw the amendment which I have moved in order to give an opportunity for further consideration of the matter in the hope of achieving a consensus. However, we would in those circumstances wish to bring this back. I therefore beg leave to withdraw the amendment.
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