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The Countess of Mar: My Lords, perhaps I may slightly correct the Minister. The first appeal is to an adjudicator, not to an independent tribunal.

Lord Filkin: My Lords, the noble Countess, Lady Mar, is absolutely right. The first appeal is to an adjudicator in the Independent Immigration Appellate Authority. The second appeal is to the independent tribunal. I thank her for that correction.

(10)Those figures demonstrate a level of appeal to the higher stages which one sees in no other tribunals in our jurisdiction. That is for two obvious reasons. First, the applicant has absolutely nothing to lose by playing the appeal process to the maximum. Without being too sharp about it, the lawyer has absolutely nothing to lose by taking cases that do not have serious merit, or even reasonable grounds to argue, to the next stage of appeal because they are fully funded by the state in doing so. Therefore, we have a system which provides an incentive
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for both applicant and lawyer to play it long. That produces the serious, negative consequences that I have described. Those consequences matter to this Government and they matter to this society.

Finally, I shall speak to the summary figures. If one looks at the number of people who appeal from the decision of the adjudicator to a higher tier of process and if one then tracks the figures around the system, only one in 10 of those people who appeal against an adjudicator's decision has that decision changed at the end of the process. If one wanted evidence of abuse, that figure would provide it. I have identified the motivation for abuse, but that figure demonstrates that there is abuse in the system. Only one in 10 cases actually leads to a change in decision.

The statistics are complex. I have put a letter in the Library of the House which explains why I am absolutely confident that that is a true and fair figure. It is the figure that should be sitting over this debate. We are not talking about a system where there is no problem and which we do not need to worry about sorting out. We need to worry about sorting it out extremely seriously and I shall watch with interest how the respective parties vote on these issues if the House divides.

That is why the appeal system matters and why the Government are committed to trying to do something about it. I shall now say where the amendments are deficient and why I do not agree with them. I shall also, as I hope is my wont, signal where there may be some common ground. I shall be interested to see whether there is any common ground on these issues.

I turn briefly to the process. Section 103D was part of the package of amendments that was introduced to replace the judicial review ouster with a new system of access to the higher courts. It is central to ensuring that only those with a genuine claim apply for review and to discouraging abuse. I have spoken about the abuse and I shall not repeat that. In exceptional circumstances, the High Court will have the power to order legal aid to be paid for the review process. An example of an exceptional circumstance might be a case where, on consideration of the review application, the High Court referred it to the Court of Appeal because it raised a question of law of general importance to the system. In those cases, it is right and proper that legal aid should be awarded, as I am sure that the noble Lord, Lord Goodhart, would recognise.

Under those new arrangements, we are asking lawyers to share the risk with the taxpayer when deciding whether a case should be pursued beyond the single tier. If we went along with the thrust of the amendment of the noble Lord, Lord Goodhart—for whom I have the greatest respect and who I know has tabled it from good principles—the broad consequence would be that virtually any appellant would be able to argue that there was some reasonable grounds. One would need an absolutely hopeless lawyer or an absolutely hopeless case, or both, not to be able to find some reasonable
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ground for lodging an appeal. The consequence of no reasonable grounds is that virtually everybody would continue to receive legal aid, even for cases—

Lord Goodhart: My Lords, is the Minister aware of the famous remark of one appellate judge; that the fact that a case has been argued for a week does not mean that is an arguable case?

Lord Filkin: Yes, my Lords, I take the point. Without speaking at great length, while it is, on the face of it, seductive to the House to think that there are no reasonable grounds, I envisage the consequences of that being our finding ourselves very much where we are now. And where we are now is very unsatisfactory for the reasons that I have given.

Some of the debate will turn on whether it is reasonable to put the burden on the lawyer to make a judgment about whether he should take a case to appeal. The lawyers who are making that judgment will already know the case, because, in most cases, they will have advised the applicant on legal aid when he was making his appeal to the IND. They will have advised the applicant when he made his application to the IAT. Therefore, they will know the facts and the strength of that case. Essentially, the system will be that they should be rewarded on success and that they should be rewarded on near-misses. They should be rewarded at a higher rate than would normally be the case so that they are compensated for the risk that they take, because none of us can perfectly judge which case is a winner or even which is a near miss. Our intent is not to squeeze out of the system those cases which have reasonable grounds for being argued—those cases should be brought forward. Nor is it our intention to make the legislation so stringent that a good asylum lawyer cannot make a judgment where he thinks that the case has legs and should have a hearing. If he gets that wrong, one wants him to be in a position whereby, on swings and roundabouts over time, sufficient legal aid is granted as to continue an adequate supply of lawyers. Therefore, central to our thinking is that one has to pitch the legal aid, by whatever mechanism—there could be variability in it or a debate about it—so that there is an adequate supply of lawyers who are prepared to come forward and take cases that should be taken up because they have merit. However, we have to squeeze out those cases where there are no reasonable grounds for believing that there has been an error of law on the part of the AIT and that, therefore, they justify a reconsideration.

At previous stages of the debate, I have been asked why the LSC should do not all of that. There are two reasons for that. First, the LSC will add a further delay to the loop. Secondly, it is extremely difficult, just on the basis of the case that is presented on paper by the appellant's solicitor, to make a judgment about whether that case has strong merit. Therefore what happens is that such cases are put through and it is only when the full case is argued before the AIT on reconsideration that anyone apart from the lawyer will be in a position to make a judgment about whether the case had serious merit or not. The approach involves
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those reasons and not any flippant reasons. If we could have done it another way we would have given it serious consideration, but it does not actually work in practice if we are to achieve what we wish to.

The mechanism of trying to incentivise lawyers to bring forward good cases—and to reward them at a level that ensures that they do so and take a reasonable level of risk—has to be crafted in detail through regulations. Those require a serious discussion with the professions to get the level right to ensure there is an adequacy of supply. That is not a flippant but a serious point. We want to ensure that there is adequacy of supply so that they do take those judgments and risks. We cannot calibrate the detail of that now.

Amendment No. 26 would enable the High Court power to award legal aid for review applications even if the application was dismissed. That is totally at odds with the policy underpinning the proposals, which is to encourage lawyers to focus on meritorious cases. Paying legal aid for unsuccessful applications will not give the deterrent effect that is so crucial to ensure lawyers do not flood the High Court and the tribunal with weak cases.

Amendment No. 28 gives the High Court power to order legal aid to be paid for reconsideration. Again that undermines the policy intention. It is important to understand the process. The review stage is a gateway. It will be a paper-based process and the High Court will only be engaged in deciding whether the tribunal might have made an error of law that affected the outcome. If it does make that decision, it will order the tribunal to consider the case in practice.

On reconsideration, parties to the appeal will be able to make oral representations and the tribunal will have the opportunity to examine cases fully. It is inappropriate for the High Court, at an ex parte hearing, to make a definitive ruling binding on the tribunal. That judgment should be made at the tribunal, as I think the noble Lord, Lord Kingsland, accepted when he spoke in his support for some of the amendments.

Let me give an illustration of why that is so. We have some experience from, I think, May 2003 to April 2004 on statutory—

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