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Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007

Volume 691: debated on Tuesday 17 April 2007

rose to move, That the draft regulations laid before the House on 14 March be approved.

The noble Lord said: My Lords, in moving the Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007, I shall also speak to the Legal Aid (Asylum and Immigration Appeals) (Northern Ireland) Regulations 2007. The first set of regulations relates to England and Wales, and introduces amendments to a retrospective funding scheme that has been in place since April 2005. The other set relates to Northern Ireland, and introduces a similar retrospective funding scheme to that which currently operates in England and Wales. Due to their similarities, we are considering them in one debate. Both have been the subject of consultation with key stakeholders, and I believe that all the changes proposed are useful and necessary.

Both sets of regulations are made under Section 103D of the Nationality, Immigration and Asylum Act 2002, as inserted by Section 26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Section 103D makes provision for the High Court and the Asylum and Immigration Tribunal to order payment of an appellant’s costs for the reconsideration of a tribunal decision and any pursuant review to the High Court, out of the community legal service fund. The regulations set out the statutory framework for the procedures to be followed by the tribunal when retrospectively awarding legal aid for challenges to decisions of the tribunal, and prescribe the precise circumstances in which costs can be paid.

I should first explain why we are making the regulations. A retrospective funding scheme for challenges to the decisions of the tribunal was introduced by the principal regulations in England and Wales in April 2005. The aim was, and remains, to combat the abuse of the appeals process and to reduce the number of weak applications being pursued through the system. Under this scheme, legal aid is awarded at the end of the process, usually when the appeal has been reconsidered. The intention is that if lawyers pursue a case which the tribunal or the High Court ultimately decides is without merit, they should bear the risk of not being paid for their work. The scheme was part of a comprehensive package of reforms introduced at the time and designed to increase speed and efficiency in the asylum and immigration system and to target public money and resources on those in genuine need. Since the retrospective scheme was introduced in England and Wales, a number of operational issues have arisen which the Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007 seek to address.

Specifically, these regulations give effect to Section 8 of the Immigration, Asylum and Nationality Act 2006. That extends the power of the tribunal and gives judges the power to make a costs order for preparation work that representatives have done for a reconsideration that has been ordered, but in the event does not proceed. That may happen because the Home Office concedes the appeal or the appeal has to be treated as abandoned or the appellant withdraws the appeal.

Under the provisions, at the reconsideration stage funding can be awarded by the tribunal for costs incurred in making the application to reconsider and also in relation to the work carried out for reconsideration. However, the tribunal’s powers to award costs at the reconsideration stage are triggered only once the reconsideration has taken place. If no order for reconsideration is made by the tribunal, the appellant may apply to the High Court to consider its application for reconsideration. At this review stage, funding can be awarded only for costs incurred in making the review application.

As the tribunal’s powers are triggered only once the reconsideration has taken place, it creates a problem in relation to cases which are withdrawn or conceded after a reconsideration is ordered and the representative has carried out preparatory work before it takes place. Even if costs have been incurred legitimately and should be paid, under current provisions the representative can be paid only for costs incurred in making the review application and for nothing else.

In order to avoid any unfairness, the Legal Services Commission has agreed that suppliers in this position are paid for costs reasonably incurred. These costs are subject to assessment by the LSC, but this is not a satisfactory long-term solution. Regulations 2 and 3 now bring these cases into Section 103D arrangements. The tribunal will have the power to make an order for costs for the preparation of a reconsideration that has been ordered but does not take place.

Regulation 2 amends the principal regulations to remove a provision for the appropriate court to make a Section 103D order for payments in respect of an application for a review where a reconsideration has been ordered but does not take place. This is no longer required because of these regulations. Regulation 3 amends the principal regulations to provide the tribunal with the power to make a Section 103D order in circumstances where a reconsideration has been ordered but has not taken place. It also specifies the circumstances in which such an order may be made and the criteria that the tribunal must apply before making the order.

Regulation 4 extends the scope of the existing review procedure of the tribunal’s decision where the tribunal has decided not to award costs under Section 103D. It will now also include the circumstances where a reconsideration has been ordered but does not take place. Regulation 5 is different in that it provides for the High Court or the tribunal to give reasons for its decision where it decides in special circumstances to make a Section 103D order excluding either counsel’s fees or solicitor’s fees. There is already a requirement for the tribunal to give reasons where it refuses to make a Section 103D order. Regulation 5 also makes provision for a Section 103D order to cover the circumstances where more than one supplier has acted for an appellant during the review or reconsideration proceedings.

All these changes do not substantively alter the current legal aid Section 103D arrangements in England and Wales. We undertook only a short consultation in December last year with four key interested stakeholders, including the Immigration Law Practitioners’ Association, the Legal Aid Practitioners Group, the Law Society and the Bar Council. There were no objections in principle to these proposed changes.

I turn now to the Legal Aid (Asylum and Immigration Appeals) (Northern Ireland) Regulations 2007. As I am sure my honourable friends are aware—I am sorry, my noble friends—the tribunal is a UK-wide tribunal, and although the weight of cases before it arise in England and Wales, to be consistent we are also introducing similar provisions in Northern Ireland. The arrangements for Northern Ireland are slightly different, however. These differences are technical and are due to the legislative basis for legal aid being different in Northern Ireland from that in England and Wales.

Although a consultation on the retrospective funding scheme took place in Northern Ireland in 2005, some reservations were raised about the introduction of a retrospective scheme along similar lines to those expressed by practitioners before its introduction in England and Wales. After consultation, it was decided to delay the introduction of the scheme there until it had bedded down in England and Wales and any subsequent operational issues had been addressed. These issues are of course addressed by the proposed changes we are debating in these two sets of regulations.

As the retrospective scheme has already been consulted on in Northern Ireland, there was another short consultation in January and February this year when the consultees were asked to comment on the revised regulations which took account of the responses to the initial consultation and the addressing of the operational issues highlighted in England and Wales. As in England and Wales, there were no new objections in principle to the revised regulations. The Government consider this a proportionate response to the problem of tackling the problem of abuse within the appeal system and one which strikes the right balance between discouraging abuse of the system while also securing access to justice for genuine claimants. I commend the draft regulations to the House.

Moved, That the draft regulations laid before the House on 14 March be approved.—(Lord Evans of Temple Guiting.)

My Lords, I want to respond only briefly. I offer the noble Lord my thanks for his detailed explanation of the first two sets of regulations before us. First, I offer a little advice to his departmental word processor. Perhaps I may suggest that in future the words “honourable Members” are corrected to “noble Lords” before such measures come before this House. No doubt the noble Lord will look at that himself.

Secondly, I have looked at both the regulations and the report from the Joint Committee on the Merits of Statutory Instruments—a committee on which I served many years ago. It is a rather tricky committee but is fortunately one that receives a great deal of expert advice. As it has made no particular comments on the regulations, one has to say that they do not seem to be too controversial. Initially I was confused by the fact that the English regulations were so much shorter than those for Northern Ireland. All I can say is that I am grateful to the noble Lord for explaining why it was necessary to have a slightly longer set of regulations for Northern Ireland to deal with its particular circumstances.

Again, I congratulate the noble Lord on his wonderful grasp of detail and on explaining the regulations to us. I hope that they will be able to go through in due course.

My Lords, we are also most grateful to the Minister for his careful and thorough explanation to supplement the documents we have before us, including a comprehensive Explanatory Memorandum. I have only question for the noble Lord. How many of the cases which have come before the tribunal have been subject to disallowance of an application for legal aid? Clearly the whole point of the exercise is that there are certain cases which are totally unmeritorious and therefore result in the disallowance of an application for legal aid retrospectively, otherwise there would be no point in having the order. One hopes that the practitioners represented by the organisations which the noble Lord listed as being consulted—the practitioners group, the Law Society, the Bar Council and ILPA—would have sufficient sense and caution to advise their clients in cases where there in no merit. I hope that these regulations are of a precautionary nature and that there would be extremely few cases that came before the tribunal where, because of the unmeritorious nature of the appeal, the tribunal finally disallowed it. If the noble Lord can give us those figures, we will be most grateful.

My Lords, I am grateful to the noble Lords, Lord Henley and Lord Avebury, for welcoming these regulations and for the praise they gave to the detail into which I went in presenting them. It is most unfortunate that the one question that has been asked this evening we cannot answer. We do not have the figures with us, but we will write to the noble Lord in the next day or so and send a copy to everyone else in the Chamber. I apologise for not having those figures with us.

On Question, Motion agreed to.