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Lord Kingsland: My Lords, the encyclopaedic preamble of the noble Lord, Lord Goodhart, to these amendments has left me with a relatively modest task. I entirely share his views about conditional fees, as indeed I explained at Report. It seems to me that they are, in principle, wrong in the context of public law matters. Not only are they wrong but also, in my submission, unworkable because the financial affairs of asylum seekers are such that they could never afford the insurance premium necessary to guarantee their legal representatives' fees in circumstances where the case was lost.

On the other hand, I also share the view of the noble Lord, Lord Goodhart, that is appropriate to award costs at the reconsideration stage, retrospectively, and at the discretion of the tribunal. The test should be a merits test and it should be a robust test without being unfair. There is no amendment which seeks to gauge exactly what the merits test should be. I shall be
 
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interested to hear whether the Government have given any further thought to that matter between Report and Third Reading.

Some of the amendments carry the name of both the noble Lord, Lord Goodhart, and myself. Since the noble Lord has already spoken to them, I need add nothing. But there is one amendment in the name of the noble Lord, Lord Goodhart, which I have been unable to support. I refer to Amendment No. 28. That is not because I disagree with the spirit of the amendment but because it seems unfair that there should be, as it were, two classes of legal aid rules for those who reach the reconsideration stage.

There are rules which are established by the High Court judge, because Amendment No. 28 says that a High Court judge,

"may order that the appellant's costs in respect of the reconsideration shall be paid out of that Fund",

and rules that apply to those applicants who have not had such an order made by the High Court judge and therefore have to rely on the discretion of the tribunal. That seems to put the second category in a disadvantageous situation. I would like to see all those who come before the tribunal for reconsideration having their legal aid applications treated on the same basis.

Lord Clinton-Davis: My Lords, I am not entirely persuaded that the Government have alighted on the correct solution to what is undoubtedly a very difficult problem. Nor am I persuaded that the alternatives which have been postulated, notably by the noble Lord, Lord Goodhart, provide the complete answer, although I think that in theory, they are rather more compelling than the Government's case.

I plead guilty to preferring, in our earlier debates, a view different from that of the Government. I shall not weary the House with a reiteration of all the arguments. Suffice it to say, we are both dealing with situations which, by their very nature, are, at this stage, unproved and, indeed, cannot be verifiable.

I submit, therefore, that the Government should have an opportunity—two years from the enactment of the Bill, say—to determine whether their preferred way works without having any serious impact on civil liberties or whether we should revisit the matter, giving the Legal Services Commission the task of determining whether there is an arguable case, and that those putting it forward should be in no doubt that their costs will be paid. I ask my noble friend whether this idea is worth contemplating, as I believe it is.

Lord Filkin: My Lords, in responding to what have been clear and succinct speeches, I shall set out the Government's position pretty fully. That is not because I want to weary the House but if, as may well be the case, we come back to these issues time and time again—and I hope that I have the attention of the noble Lord, Lord Kingsland, on this point—it is fair that noble Lords should understand why the Government are doing this and the force of their position in this respect, so that there is no misunderstanding.
 
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When we originally introduced the Bill into this House, we had sought to remove judicial review. We did so not for any flippant or frivolous reasons but because we have a duty to this country to try to make the asylum system work. This is in the interests of those who claim refuge in our society but also in the interests of the taxpayer, the efficient use of public money and the confidence of our society that the Government are addressing the issue of asylum properly as well as addressing asylum abuse properly.

We listened to noble Lords when they said that they felt that ousting judicial review was going too far, and we listened seriously. The noble Lord, Lord Kingsland, had the courtesy to acknowledge that when my noble and learned friend the Lord Chancellor put before the House why we had listened and why we were going to change. But make no mistake—we are not embarking on a process to recreate, amendment by amendment, the old two-tier system of appeals from the original decision process that we currently have. That is for a very good reason. While undoubtedly there are some people who ought to have had further consideration, in practice the process has led to abuse. If this House is party to perpetuating such abuse, the public will express their views on the matter very clearly and strongly. I make a distinction between abuse and trying to ensure that we uphold the civilised standards that we are proud of in our society.

So we are not going to allow the recreation of a bells and whistles two-tier system which has been the central thrust of this part of the Bill. Why not? First, there is the issue of cost. The cost of legal aid for asylum and immigration cases went from £53 million in 1998–99 to £176 million in 2002–03, while the most recent figure is nearer £200 million. There are plenty of good uses for £200 million.

The cost of an individual pursuing an appeal through to judicial review is probably about £4,000. Of course it is right and proper that such an individual should be legally aided by the state if there is serious merit in his or her case, but it is not right and proper for the state to fund an appeal when there is not serious merit in the case. Our society would hold us, as a House, in contempt if we were not able to make that distinction.

There is also the issue of delay. The consequence of a byzantine structure of appeals, which is what we are trying to demolish, is that it takes well over a year—more than 62 weeks—for a person who is persistent with their legal adviser and uses every single step of the process to bring the matter to a conclusion. We are seeking to put in place a system that is fair to the appellant but can nevertheless be concluded within 20 weeks or so.

The effect of a long-running process also matters. Europol—not me and not the Home Office—estimates that 70 per cent of people who come into the EU are facilitated in doing so by criminal gangs. It is self-evident that they have to have assistance to get to Britain, either through false means of transportation or forged documentation. This is a criminally run and criminally supported business. One of the reasons that
 
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it is a good business for criminals is that people will pay them substantial sums of money to try to get into Britain and pursue an asylum claim.

Britain is attractive because the process is long and slow, and removals are difficult. Countries where the process is rapid and removals are certain are a much less attractive proposition for a facilitator who is trying to extract £5,000 from somebody in the Indian subcontinent who wants to get into another country. That is why it matters.

The final reason why the process matters is that wider society in Britain does not believe that the Government or Parliament are able to make that distinction between people who are genuine asylum cases and those who, supported by criminals, are able to make claims that are not genuine and have a state-funded process that supports them in doing so. That undermines the confidence of society in government and the administration of justice. More seriously, it also undermines the public's belief that people who are granted asylum in our society are genuinely deserving of the refuge that this country gives. That matters in terms of our society. I do not want, nor should this House want, society to think that asylum recipients are liars, cheats, crooks or frauds. That terribly damages community cohesion.

I have set out with no apology why that matters and why I fear noble Lords will be hearing me say it on a number of occasions again in the future, if, as I fear, both opposition parties choose to ignore that serious picture and vote against what we are proposing.

I turn to the specifics of the issue. Approximately 70 per cent of people who are given a "no" decision by IND lodge an appeal. In many ways, one would expect them to do so. Of that 70 per cent who have had their case heard by the independent tribunal, which has not found that they deserve asylum according to our laws and international standards, about 50 per cent then appeal to the Immigration Appeal Tribunal. The noble Lord, Lord Newton, who is in his place—

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