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Lord Goodhart: My Lords, as the noble Baroness said, the regulations are made under Section 103D of the Nationality, Immigration and Asylum Act 2002, which was inserted into that by Section 26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
During the debate in this House on the then 2004 Bill, we on these Benches objected strongly to Section 103D. On Report, I said that if the High Court had ordered reconsideration under Section 103A, legal aid should be granted automatically for reconsideration by the tribunal. I said that it was essential that the appellant's lawyer get legal aid in such circumstances, and that "no win, no fee" funding was completely inappropriate for such litigation, with potentially disastrous consequences for an asylum seeker wrongly sent back. We would have accepted, somewhat reluctantly, that there would be a possibility of "no win, no fee" arrangements on the application to the judge for reconsideration but, once the judge had decided that there should be reconsideration, there was no case left for saying that, at the full reconsideration, there should in any circumstances be no legal aid.
What the Government propose in the regulations is unnecessary in relation to reconsideration, because a series of filters is already in place to screen out the hopeless cases. The Legal Services Commission applies quality controls to firms conducting publicly funded immigration work, so if they start taking hopeless cases they will lose their funding. All review applications are subject to a controlled legal representation merits test, which means that the applications must be at least reasonably arguable to qualify for legal aid. From 4 April next year, all lawyers doing publicly funded immigration work will have completed a rigorous accreditation process.
In cases where the High Court has ordered reconsideration under Section 103A, the judge will have decided that the case has sufficient merits to justify reconsideration. If the judge has decided that, it must surely be wrong to withhold legal aid.
We are as opposed today as we were when we debated the Bill a year ago to the Government's extension of the no-win-no-fee practice to reconsideration under Section 103A, which is wrong in principle and creates a
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dangerous precedent. We have to accept that the Bill is now law and that this issue was fully debated during its passage through your Lordships' House.
The power to make provision for costs dependent on the prospects of success is in Section 103D(5) of the Act. We therefore reluctantly accept that we cannot oppose the order in principle.
I have a number of questions to ask the noble Baroness. First, I understand from a briefing we have received from the Law Society that at a meeting on 11 March a DCA representative stated that legal aid will be granted in all cases when reconsideration is ordered even if the application is ultimately unsuccessful, unless there has been dishonesty by the legal aid supplier in representing the grounds for the review. Can the Minister confirm that? If so, why is that important and welcome decision, if it is a decision, not on the face of the Bill?
The significant prospect of success test is, as the Minister said, a matter for interpretation by the judge or tribunal considering whether or not to make an order for costs. The judge or tribunal will not be bound by the views of the DCA. It would surely therefore have been better if they were bound under the terms of the order.
The second question is somewhat detailed. What is the reason for the distinction between Regulation 5(4) and Regulation 6(3)? Regulation 5(4) applies to the costs of unsuccessful applications to the High Court for an order for reconsideration. Regulation 6(3) applies to the costs of unsuccessful reconsideration following the making of an order by the High Court. Both of these require that before legal aid can be awarded there must have been a significant prospect at the time of the application that the appeal would be allowed on reconsideration. But Regulation 5(4) requires that there should have been an intervening change in the circumstances or the law since the application was made. Why is that?
If the judge feels, for example, that the application for an order for reconsideration only just fails and did have a significant prospect of success, why should there be a requirement for a change in circumstances or the law as well?
My third question is that in civil "no win, no fee" cases, a mark-up above the normal rates of charging is allowed. There is nothing in the regulations about mark-up. However, will it be provided for by the contract between the Legal Services Commission and the supplier referred to in Regulation 81? If so, at what rate?
Those are the points that I wish to make, and I shall listen to the Minister's answer with interest.
Lord Kingsland: My Lords, it seems to us that there are three issues. First, why is the special regime necessary at all? Are there not sufficient safeguards in the existing legal aid system, as the noble Lord, Lord Goodhart, has already indicated, to prevent unmeritorious cases from getting off the ground? The Legal Services Commission imposes quality control on the relevant solicitors' firms; the CLR "merits test" requires more than a 50 per cent prospect of success;
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and all lawyers undertaking publicly funded work will have had to undergo testing accreditation procedures. Moreover, the statistical evidence demonstrates that, since 2003 at any rate, asylum applications have been falling steadily.
Secondly, why will the applicant not know whether the request for review and reconsideration of an application will qualify for legal aid until the end of the case? Why is the test retrospective? The judge must apply it, retrospectively, to the circumstances that prevailed at the time that the application was made. That will inevitably involve a high level of subjective judgment on behalf of the judge.
Thirdly, it has been rumoured for some time that the chances-of-success threshold will be set as high as 75 per cent. If that is so, it is hard to imagine any application which might successfully meet it. That is particularly disturbing when one considers the difficulties for asylum seekers of representing themselves in the absence of legal support. It should also be borne in mind that the consequences of the courts getting it wrong in the case of any individual asylum seeker might ultimately lead to his or her torture or death.
Like the noble Lord, Lord Goodhart, I understand from the Law Society of England and Wales that, at a recent meeting to explain the new scheme on 11 March this year, the department stated that all applications that pass the initial review stage will benefit from a funding order at the end of the reconsideration stage, even if unsuccessful, provided that there has been,
If that is to be the standard, then the risk to suppliers is reduced to the work required for the review stage alone.
Where a full reconsideration is then ordered, the supplier can be virtually certain of receiving payment at the end of the case. This offers a degree of certainty as to payment. However, I understand—and I believe that the noble Lord, Lord Goodhart, also understands—that the Law Society is concerned that this stated intention is not reflected in the regulations; and that the department maintains that the interpretation of the "significant prospects of success" test should be left to judicial discretion. This could lead to inconsistency in the interpretation of the test. If it is the Government's intention that cases that pass the review stage will benefit from a funding order, the regulations should be amended to reflect that.
Baroness Ashton of Upholland: My Lords, I am grateful to both noble Lords who have spoken. I recognise that we are at the end of a long process with a great deal of debate around these issues. That is very interesting for me because I also have ministerial responsibility in this area.
I shall start by trying to say something about the significant prospects of success. I do not by any means equate this issue with "no win, no fee" because there will be circumstances when unsuccessful cases do indeed receive the funding that we all agree they
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deserve. We have sought to look across a system that clearly has considerable problems within it. As I indicated in my opening remarks, there is no incentive whatever for an applicant to do anything other than continue to pursue his case. We must try to think about how to create a system which genuinely deals with those who have real claims and which disincentivises people—in this case, suppliers—from continuing with claims that have no merit.
We have sought with the filter to make it clear that we are concerned with those cases that have merit. I agree with the noble Lord, Lord Kingsland, that we want to ensure that genuine claimants remain in this country. We have a long and proud tradition of that and we wish to uphold that. But we also want to ensure that the evidence presented at that time is all that it could be.
So the purpose of the judges at the end of the case having the opportunity to say that they will review the information and the case before them, and to interpret significant prospects of success, is because I have great faith in the judiciary. We have very deliberately within the DCA—and I as a Minister—not attempted to give percentages or anything else to the judiciary. It would be wholly wrong to do that. It is for the judiciary to interpret and review the evidence that comes forward and finally to answer the question whether the information that the supplier provided at the beginning amounted to a case that has significant prospects of success—win or lose.
So it is not a "no win, no fee". It is not a circumstance where we have put figures on it. It is not where I or any other Minister dictates what would happen. It is the case that I would expect that a number of those who come forward who are unsuccessful would indeed receive funding, and we have built in the opportunity to challenge that, which is right and proper.
But the regulations are trying to set out very clearly that our purpose is to ensure that cases come forward where there is genuinely a strong belief that there are significant prospects of them being successful. That is very important when you look at this, as I do as a non-lawyer, as a system that clearly has pressure points within it that we need to address. We believe that we have the balance within that right. That is the basis upon which you have both the filter and ultimately the judge at the end of the case looking again to ensure that that has happened.
I do not know what comments were made on 11 March. I think, as I have indicated, that a number of cases that were not successful will come through, but it is for the judiciary to determine. As noble Lords will know, we arrived at significant prospects after a great deal of consultation and careful consideration. But I am not suggesting that we should expect the judiciary to have that interpretative bias in any way, shape or form. It is a matter for them.
The noble Lord, Lord Goodhart, asked about the mark-up. The mark-up has been altered from 25 per cent—which is what we originally proposed—to 35 per cent for these cases. In addition, if there is a
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particularly complex case with perhaps a senior legal representative or senior barrister involved, there is the opportunity to go back to the Legal Services Commission and argue for more resources to be made available.
We do not expect there will be many, if any, instances of dishonesty: the majority of cases will be paid. I was hoping to get an answer on a particular point asked by the noble Lord and I will see whether that arrives. To answer the point of the noble Lord, Lord Kingsland, we believe that the system requires a special regime. I did not put a figure on it; 75 per cent has been bandied around. That was a figure that I was pushed on by the Constitutional Affairs Select Committee. That does not mean I agreed with it—I simply did not respond to it because I felt it was wrong for me to give any indication of what I would consider significant prospects of success.
I am looking for a system that removes the 65-week timetable—which is what we currently have—to what we hope will be a 32-week timetable for applicants; 36 weeks perhaps in very complicated cases. That will enable us to give justice more quickly and more appropriately to those in need of it.
Much has been made of what will happen with regard to the supplier base. I can only say at this stage that regarding the asylum and non-asylum contracts—both with solicitors and not-for-profit contracts—comparing 2003–04 with 2004–05, in all cases the latter figures are currently above the figures for 2003–04. That does not mean that I am in any way, shape or form complacent about our need to have extremely good legal representation for those individuals. Therefore I can commit to your Lordships' House that I will be looking very carefully to ensure that the system that we have in place enables us to provide high-quality legal advice for those who need and deserve it. I believe that the system will do that. At present, despite what has been said about stakeholders pulling out, there is no evidence to suggest that that will happen.
The noble Lord, Lord Goodhart, asked why Regulation 5(4), the test at review stage, is stricter than Regulation 6(3), the test at reconsideration. At
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the review stage, as the noble Lord will realise, if the judge thinks that there is a significant prospect of the appeal being allowed on reconsideration, he will order a reconsideration. So the case falls under Regulation 5(2), not Regulation 5(4). If a reconsideration is not ordered, the intention is that funding will not normally be granted. Regulation 5(4) serves the limited purpose of ensuring that a representative who brings a meritorious case will get funding if some change of circumstances means that a reconsideration is not ordered. That is the reason for the difference between those two regulations.
I believe that we have struck the balance that we need to strike to ensure that cases that have merit go forward and that we serve those individuals as well as we possibly can. It also allows us to disincentivise a system that at present incentivises only the pursuance of cases.
I accept all the work that the Legal Services Commission has done with suppliers to ensure that they are of the highest possible quality. I pay tribute to the work of many of the suppliers. The system ensures that we get the balance to enable us to provide justice as speedily as possible. As I have already indicated, if I have one ambition it is that we reduce the length of time that people in the system have to wait to get the justice that they deserve. I have already committed to ensuring that we look after, and look over, the process and that we work closely with the LSC, the judiciary and suppliers to ensure that the system works effectively. I commend the regulations to the House.
On Question, Motion agreed to.
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