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Lord Filkin: My Lords, I thank the noble Lord, Lord Goodhart. He is quite right. Perhaps I will spare him some of my further dire statistics, but I can no doubt share them with him on another occasion.
On Amendment No. 29, if the High Court thinks a review application has no merit, the amendment requires it to issue a certificate to that effect. I recognise the intention behind the amendment, but it is not necessary.
As the noble Lord, Lord Kingsland, knows, under the Government's proposals, which will be detailed in the regulations made in due course, we foresee the High Court will order legal aid to be paid only in
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exceptional casesfor example, as we stated explicitly in Clause 103D(1) where the court refers a case to the Court of Appeal. In the majority of cases the High Court is only dealing with ex parte application and will not play a part in ordering legal aid to be paid. It will be for the tribunal. Amendments Nos. 30 and 31 require the tribunal to award legal aid in every case unless there were no reasonable grounds for doing so. I have spoken to that already and shown the dire consequences that would come about.
Amendment No. 32 removes from the Bill the power to award different payments to different cases, based on the outcome of the case. What I heard from the noble Lord, Lord Kingslandno doubt he will correct me if I heard wronglywas that while he did not like conditional feesI think he went so far as to say that they were wronghe did agree that for having an effective control system, costs had to be awarded retrospectively at the discretion of the tribunal. We are four square on that point.
The noble Lord also said that he was perfectly comfortable with a robust merits test. What I understand by that is that he would see that there should be the payment of legal aid, clearly on cases that succeeded, and no doubt also, without putting words into his mouth, on cases that had merit or strong merit. Therefore I infer from what he said that there should be a flat fee on all such cases. It is possible that we are talking about whether there should be a two-stage fee or a flat fee, perhaps at a higher level than the lower level might be on a two-stage fee, applied for perhaps a tightly limited number of cases.
If that is what the noble Lord, Lord Kingsland, intendedI am not getting a response; yes I amI do not think the difference between us is necessarily massive. But no doubt he will correct me if I am wrong.
I have gone on long enough. I am glad to hear that I have the House's support on that as ever. But my length is for a reason. If we do not get this matter rightif this House does something to the Bill that means we fundamentally do not fulfil the duty we have to the country in being fair to asylum seekers, yet also controlling abuse of the systemwe will be rightly pilloried, but also the issue will return to your Lordships' House. It is as well that noble Lords understand why we feel strongly on this issue.
Before the noble Lord, Lord Clinton-Davis, interrupts, I conclude that I agree with him that as regards the system that we intend to put in placewith or without modifications, if there is scope for modificationswe would be very happy to give a commitment that we will review its operation over a two-year period and will put the report of that review into the Library of the House, so that it is there for inspection, debate and evaluation. I hope that answers the point of the noble Lord, Lord Clinton-Davis.
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I hope that with those reasons the House will not feel it necessary to move to a Division because I have clearly signalled my willingness to debate within the parameters on which I had a discussion with the noble Lord, Lord Kingsland.
Lord Kingsland: My Lords, I am most grateful to the noble Lord, Lord Filkin, for those remarks. The position is this: we have put our names to Amendment No. 26it is a joint amendmentand Amendments Nos. 32 and 34. Those amendments seek to remove the conditional fee system from the Bill. As far as we are concerned, those amendments are unnegotiable. We find a conditional fee system unacceptable.
However, for my part, if the noble Lord were prepared to say that he would go off to another place and introduce a system based on merits with a robust merits test, but which applied equally to winners or losers without any distinction between the twoif he were prepared to give that commitment on the Floor of the Housethen I would be prepared to leave the noble Lord to fulfil that commitment in another place and see what came back to your Lordships' House as a consequence.
Lord Filkin: My Lords, I will respond to the noble Lord, Lord Kingsland. Although I have probably implied as much in what I said, but let me spell out our view for the avoidance of doubt. We are not wedded to the finest detail of the proposed mechanism. We are wedded to a system that focuses legal aid tightly on those cases which have real merit. That is for good reason. That means the decision can be made only at the end of the process by the tribunal. The detail has to be worked out in regulations, for good not flippant reasons, because one is also partly trying to ensure that whatever system one sets up has an adequacy of supply. You have to have an adequacy otherwise you do not meet the interests of justice.
If the debate is on how we craft a system that has a robust merits test"significant merit" are the words that I would tend to look atwe are not wedded to a two-tier system and we are open to looking at introducing amendments that brought in a serious merits test and paid legal aid for cases that won or did not win but met the serious merits test. I give that commitment that we would be happy to do so in another place. I hope that answers the noble Lord, Lord Kingsland, clearly and unequivocally.
Lord Goodhart: My Lords, our amendments meet absolutely the legitimate intention of the Government to cut expenses, because they would make the award of legal aid retrospective, so that it would not be granted when the application for reconsideration was made on unreasonable grounds. The Minister shakes his head, but he said during the course of this debate that the Government's aim was to squeeze out cases in which
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there were no reasonable grounds. That is exactly our aim too. The problem is that the Minister's draft of these clauses will squeeze out not only cases in which there are no reasonable grounds but those in which there are reasonable grounds.
Lord Filkin: My Lords, I hope that I understand the position taken by the noble Lord. Noble Lords have corrected me previously, but I have said quite a lot. Essentially, I am convinced, as are our lawyers and officials, that the effect of the noble Lord's amendment would be that we would rapidly have a very large number of cases with pretty weak merits coming through the system, legally aided by the state. We would be recreating the two-tier system with all the negative consequences that I have set out.
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