Asylum and Immigration (Treatment of Claimants, etc.) Bill

Part of the debate – in the House of Lords at 3:45 pm on 6th July 2004.

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Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs) 3:45 pm, 6th July 2004

My Lords, this is much more serious group of amendments. I speak also to Amendment Nos. 27, 28 and 30 to 33. These are all amendments to Clause 26.

Clause 26 eliminates the adjudicators and provides for appeals by immigrants or asylum seekers from an adverse decision or an immigration officer direct to the asylum and immigration tribunal. If that appeal is rejected, the immigrant or asylum seeker can apply to the High Court for an order requiring the tribunal to reconsider its decision on the ground that it may have made an error in law.

The Bill inserts new Section 103D into the Nationality, Immigration and Asylum Act 2002. That is the provision which deals with costs. Under Clause 103D(1) and (2), the applicant's costs may be paid out of the Community Legal Service fund if, but only if, the application has succeeded. That is the cost of the application, not of any reconsideration which has been ordered. At the reconsideration stage, the tribunal can order the costs of both the application and the reconsideration to be paid out of the fund under Clause 103D(3) and (4). The reconsideration does not have to be successful in order to get an order, but the result has to be taken into account under these provisions. Clause 103D(6)(a) provides that if payments of legal aid are made, the amount of payments may vary according to the result. That is to enable the Government to provide mark-up success fees for successful applications. Section 103D(6)(c) provides that the power to make an order for the payment of costs,

"may be restricted by reference to the outcome of the appeal".

The Government have made it clear that they intend to introduce a conditional fee system for both the application and any reconsideration which may result from a successful application. There is an absolute "no win—no fee" system at the application stage because the order under subsection (1) can only be made if the appropriate court has made an order. At the reconsideration stage, the Government have said that they will limit payments out of the fund to winners or near misses, but as with conditional fees under the Access to Justice Act 1999 there will be a mark-up for successful cases.

Conditional fees were introduced by the 1999 Act for civil cases involving damages or claims to property. Conditional fees have many defects, but we have to accept they are here to stay in civil cases. Up to now, they have not been introduced in public law cases and they cannot, under the 1999 Act, be introduced for criminal cases. If ever the conditional fee system was applied to criminal appeals, I believe there would be an absolute uproar in the legal profession and beyond it. What would the effect of that be? Of course, it would depend on the amount of the "success fee" or mark-up. If we assume that it is 100 per cent—that is, double the standard fee being given if successful; it certainly would not be more than 100 per cent, and could well be less—it would mean that lawyers would not take a case unless the chances of success were greater than 50 per cent, otherwise they would end up being out of pocket.

People convicted of crime must obviously be allowed to apply for leave to appeal from conviction even if their chance of success is quite small, and if the judge hearing the application for leave thinks the case is strong enough to justify leave to appeal then the appellant will get legal aid for that appeal, win or lose. The consequences of a wrongful rejection of an asylum claim can be just as disastrous as the consequences of a wrongful conviction, so I believe that legal aid for the application and reconsideration should in principle be treated on the same basis as criminal appeals. It is completely unacceptable if lawyers refuse to take a case because it only has a 40 per cent chance of success, or indeed a 20 or 25 per cent chance of success.

I am prepared to accept that some modification of the criminal appeal basis is appropriate here. For the application, what I propose is to remove the requirement that the costs of the application can only be paid if the application succeeds. That is the result of Amendment No. 26, which leaves payment in the discretion of the High Court judge who hears the application. This discretion would of course be retrospective, but I believe the court, if left with that discretion, would order payment where it was reasonable to make the application, even though it had not succeeded. Conversely, where there were no reasonable grounds for making the application, costs would be refused. The costs of the application are relatively small, because applications are determined on the basis of written submissions of the applicant, without argument. But the reconsideration stage involves considerably more time and work, because the cases have to be argued and are contested. It is true that they are legal arguments only, but they could be time-consuming, involving a full day or more.

In principle, I believe that if the application is granted, that shows there must be reasonable grounds for reconsideration and legal aid should be granted before the reconsideration hearing. I put forward an amendment at Report which would have had that effect. I have however decided not to bring that amendment back, and have instead put down Amendment No. 28, which gives the High Court power to grant legal aid in advance where reconsideration is ordered. I do not intend to press that amendment because it is not central to the case that I am making. I recognise that there could be cases in which the grounds on which a successful application has been based are misleading or incomplete. For example, failure of the lawyer making the application to cite an important decision in another case of which the judge is unaware.

I am, therefore, prepared to accept that the order for payment of costs should be retrospective and in the discretion of the tribunal, but I believe strongly that costs should only be refused where there are no reasonable grounds for making that application. That is the effect of Amendment No. 30. If the costs are refused, reasons must be given so that that decision can be reviewed: that is the purpose of Amendment No. 31. I have passed over Amendment No. 27, which is a very minor consequential amendment.

It follows that reference to the amount of the payments varying according to the results, and to the order for payments being restricted by reference to the outcome of the appeal should be omitted. That is the effect of Amendments Nos. 32 and 33.

The Bill as amended will still give protection to the legitimate aims of the Government. Applications will still be dealt with quickly, because there will be no prior applications for legal aid. Hopeless applications will be deterred because the judge or tribunal can dismiss them and refuse, in their discretion, to order costs. Lawyers in the few unreasonable cases which may slip through the filter will be punished by being refused payment out of the Legal Aid Fund.

If these amendments are not accepted, there is a real risk of injustice to immigrants and asylum seekers. That is the view of the Joint Committee on Human Rights, in a report which was published much longer ago than yesterday. These passages are from its thirteenth report of the present Session. On page 23 the committee says:

"It seems to us undesirable that the right of access to court for the protection of the most fundamental of rights should be made to depend for its effectiveness on the degree to which lawyers are risk-takers".

The report continues at paragraph 1.85 to say:

"The evidence of respected bodies with practical experience in the field is that the legal aid proposals will inevitably lead to meritorious cases not proceeding because of the practical impossibility of obtaining representation, and this will in turn lead to individuals being returned in breach of the UK's ECHR obligations and of the principle of non-refoulement. We remind the Government of its obligation under the ECHR to ensure that there is available a practically effective opportunity to have the substance of any arguable Convention complaint considered, and that this obligation includes a positive obligation to take steps to make sure that there are not practical obstacles to the availability of such an opportunity".

Then, in paragraph 1.87, the committee says:

"We agree that the effect of the proposed conditional fee legal aid regime for High Court reviews from the Tribunal will be that meritorious cases do not get brought because of the lack of representation".

I am astonished that the Government are prepared to put into the Bill provisions which will cause such obvious injustice—doubly so when that injustice could be avoided by alterations to the Bill which would protect the legitimate objectives of the Government: the deterrence of unmeritorious appeals. I beg to move.