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Lord Filkin rose to move that the House do agree with the Commons in their Amendments Nos. 28F and 28G to Lords Amendment No. 28, and do propose Amendment No. 28H as a consequential amendment to Lords Amendment No. 28:

28H Leave out from beginning of line 111 to beginning of line 114 and insert—
"(1) On the application of an appellant under section 103A,"

The noble Lord said: My Lords, this is one of the most complex, interesting and potentially controversial issues that we have discussed on this Bill.
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At Lords Third Reading, I set out the problem we are trying to address with the proposals for a new legal aid scheme, and more broadly the move to a single tier tribunal. I sought to set out the issues that set the coloration to that: namely, that legal aid costs had quadrupled since 1998–99; that the average cost of an individual pursuing an appeal to the end of the process is some £4,000; and that these are unjustifiable amounts when only one in 10 of cases results in a different outcome.

I also signalled that the appeal process, if run to the full, could easily run to 62 weeks or more from beginning to end. I set that in the context that while undoubtedly genuine asylum claimants come to our shores, and it is our responsibility as a state to look at their cases fairly, we are also aware that a massive amount of trafficking of people goes on, as I instanced in the relevant debate.

As it stands, the system leads to delay and expense. There is concern that a slow process and an uncertain ability to bring it rapidly to a conclusion and to return people from whence they came feeds the traffickers' business and makes it easier for them to get people to pay remarkably high sums of money to be brought here.

In introducing a new system we have to ensure that the exploitation does not continue. The new legal aid arrangements are central to achieving that. They will stop weak applications from flooding the High Court which leads to the cycle of delay, while ensuring at the same time that the interests of justice are met.

The new scheme that we are bringing forward, which is different from the one that we discussed at Third Reading—again, we listened to the arguments put forward on this matter—will be a system of retrospective funding. We are not removing legal aid for the review and reconsideration but we are clear that lawyers have to take a part in making judgments about whether cases are meritorious. While lawyers will not know until the end of the process, when the judge makes his order, whether they will receive legal aid, good lawyers already make such judgments. The system that we are constructing will try to ensure that all lawyers make the kind of judgments that a good lawyer does in such circumstances.

However, in introducing a scheme involving retrospective funding, we recognise that the focus of the scheme should be on merit and not just success. At Third Reading I therefore agreed with the noble Lord, Lord Kingsland, on this point—we tested each other across the Dispatch Box to make sure there was no misunderstanding and we managed to reduce most if not all of the misunderstanding—when he signalled that he would like to see a system based on a "robust merits test". There appeared, therefore, to be no issue of principle between us on that; it was a matter of how one applied that.

This has always been the Government's intention. It became apparent at Third Reading that perhaps there were different ways of achieving that objective from the one that we had advanced to the House which
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clearly caused unhappiness on the part of some noble Lords. I do not think that "unhappiness" is too sharp a word. Therefore, I hope that the amendments which we brought forward in another place are seen as very much four-square with what I signalled in broad terms at Third Reading.

Amendment No. 28F removes the provision for variable fees to be paid dependent on the result of the reconsideration. Amendment No. 28G links the award of legal aid more explicitly to an applicant's prospects of success at the time the application was made; that is, whether the case had significant merit such that the lawyer was right to pursue it in a system based on merit. In a system based on merit that is fair. This test does not ask lawyers to pre-empt the decision of the tribunal; it simply asks them carefully to assess whether a case has merit. If the judgment they have made is sound, which is reasonable to expect, legal aid will be paid.

We were brought to that conclusion by thoughtfulness by counsel that the best way of ensuring justice was that the tribunal should decide whether legal aid should be paid, not in a sense simply by what happened at the end, but by looking at the case as it was at the time that the lawyer had to make the judgment at the beginning of the process. That seemed a very fair point, so that hindsight is not applied to the decision but that it can be said that, when the lawyer had to make the decision, the question was whether the case had merit.

The amendments meet many of the concerns raised. I recognise that they did not respond to all of the noble Lord's concerns, which is why, following discussion, the Government proposed Amendment No. 28H. It enables the High Court to award legal aid for the review application even if no reconsideration order or Court of Appeal referral has been made.

It is important to be clear exactly what Amendment No. 28H means. It remains our intention that the High Court's power to award legal aid will be used only in exceptional cases. In the majority of cases, the tribunal will be best placed to make the decision on funding at the reconsideration. At that stage, the tribunal will possess the relevant information to decide whether, when the review application was made, the lawyer was right to have pursued the case. By comparison, the High Court will simply consider, on the papers, whether there may have been an error of law—in other words, whether the case should be looked at further.

Although we accept that there may be circumstances where it is appropriate for the High Court to award legal aid for a review application, even if an order for reconsideration or a referral is not made, regulations will be made to prescribe tightly when that power can be exercised. An example of when the power might be used is when a reference to the Court of Appeal is made. Another might be when a review application which has good prospects of success is rendered unsuccessful following a lead decision of a case, which had not been decided at the time the application was made.
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We are committed to a system based on merit. Payment will not be conditional on success but, if we are to weed out the weak applications, we have to incentivise the system in the way in which we have done. Having listened to the House, we believe that we have a system that achieves what those in most if not all parts of the House feel are, for good reason, the objectives of government policy. I therefore urge the House to agree to Amendments Nos. 28F, 28G and 28H.

Moved, That the House do agree with the Commons in their Amendments Nos. 28F and 28G to Lords Amendment No. 28, and do propose Amendment No. 28H as a consequential amendment to Lords Amendment No. 28.—(Lord Filkin.)

Lord Kingsland: My Lords, again, I am most grateful to the Minister for his explanation of the amendments. As the noble Lord said, we did not vote on our amendments to remove the conditional fee system at Third Reading on the basis of certain undertakings that he gave. He has met those undertakings in full for which I am extremely grateful. As this is the last group of amendments on which I shall speak, I thank him very much for his co-operation throughout the whole process.

Lord Goodhart: My Lords, although I regret that the Government did not accept our important arguments on giving legal aid on a somewhat wider basis than is now proposed, the amendments are, at any rate, some improvement on the previous position. In the circumstances, given that there would be no prospect of our succeeding on any further vote on the matter, we do not oppose the amendment.

Lord Newton of Braintree: My Lords, having indicated that I very much shared the concerns underlying the exchanges that took place last week, I want to record that I think that the Minister's response is extremely positive and welcome. I express my thanks to him for that.

On Question, Motion agreed to.


42 Schedule 1, page 32, line 17, after "legal" insert "or lay"
43 Page 32, line 18, leave out first "as"
44 Page 32, line 18, leave out from "appointment" to end of line 19
The Commons disagree to these amendments and to Lords Amendment No. 61, but propose Amendments Nos. 61A to 61C in lieu thereof.
61A Page 32, line 19, at end insert—
(e) in the Lord Chancellor's opinion, has non-legal experience which makes him suitable for appointment.
(2) A person appointed under sub-paragraph (1)(a) to (d) shall be known as a legally qualified member of the Tribunal."
61B Page 37, line 5, after "a", insert "legally qualified"
61C Page 41, line 3, leave out paragraph 28 and insert—

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"28 Where immediately before commencement a person is a member of the Immigration Appeal Tribunal—
(a) he shall be treated as having been appointed as a member of the Asylum and Immigration Tribunal under paragraph 1 of Schedule 4 to that Act immediately after commencement, and
(b) if he was a legally qualified member of the Immigration Appeal Tribunal (within the meaning of Schedule 5 to that Act) he shall be treated as having been appointed as a legally qualified member of the Asylum and Immigration Tribunal."

Lord Filkin: My Lords, I beg to move that the House do not insist on its Amendments Nos. 42 to 44 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 61A to 61C in lieu thereof. I spoke to the amendments with Amendment No. 28E.

Moved accordingly, and, on Question, Motion agreed to.

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