HL Deb 10 September 2003 vol 652 cc295-8

3 p.m.

Lord Avebury

asked Her Majesty's Government:

What responses they have had to the consultation papers issued by the Lord Chancellor's Department on 5th June and the Legal Services Commission on 2nd July on proposed changes to the general civil contract for both private solicitors and not-for-profit organisations.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)

My Lords, we received some 250 responses to the department's consultation paper on the future of publicly funded immigration and asylum work. The Legal Services Commission received 17 responses to its paper on proposed contractual changes. We are currently collating and analysing the responses.

Lord Avebury

My Lords, would it be fair to say that the opinion of the organisations representing asylum seekers, including the Law Society and learned counsel instructed by the Refugee Legal Centre and by the Immigration Law Practitioners' Association, was that the proposed limits of five hours' advice on preparation of an application and four hours on an appeal are wholly unrealistic and irrational; and that the manner in which they were prepared may have been unlawful?

Does the Minister agree that because of the procrustean time limits imposed on representatives. some genuine refugees will be sent back to their countries of origin to face torture and possible death? Does he accept that some of the best practitioners are likely to give up because they will not be able to deliver an adequate service; and if that happens that the LSC may be in breach of its duty under the Access to Justice Act? So will the Government withdraw these proposals and get the LSC to enter into consultation with providers on setting benchmarks and on other means of reducing the costs of legal aid?

Lord Filkin

My Lords, I shall seek to pick about two questions from the five asked. The noble Lord is quite right on the first point, that the proposal to put a cap on the level of legal aid expenditure on individual asylum cases did not meet with strong support from lawyers. That was perhaps not surprising. Nevertheless, it opens up a serious issue that must be looked at by the Government and by the legal profession as to how one copes with the fact that legal aid expenditure on immigration and asylum has doubled since the year 2000 and that the average cost of each case of legal aid has doubled since the year 2000.

There was no illegality whatever in the process by which that consultation paper was put out. Of' course, as ever, we are giving serious thought to the responses. But there is no doubt that government have to act in this area in order to fulfil their responsibility both to the taxpayers ill giving value, to ensure that the legal aid system is protected for the benefit of others and to ensure that there is a fair hearing for people who claim asylum in our country.

Lord Archer of Sandwell

My Lords, while accepting the need to ensure value for money, has my noble friend grasped that the cases which solicitors will hesitate to accept will be the more complicated ones because they will not be able to do justice to those under the new regime? Will that not be likely to lead to the more complicated cases falling to the non-profit-making organisations; and does my noble friend consider that that will contribute to speeding up the hearing of asylum cases, which is the very laudable intention of the Government?

Lord Filkin

My Lords, clearly where remuneration is on an average cost basis there is always a question as to whether work is displaced to other providers. Obviously, the Government were aware of that kind of issue when they put forward the proposals for consultation. I come back to the essential point that it is not just the level of spend that has been rising on legally-aided immigration and asylum work, there has been clear evidence of abuse of over-claiming, some evidence of touting for business and some evidence of poor quality work and advice.

As well as the points addressed by the noble Lord, Lord Avebury, the consultation paper also looked at how to bring in accreditation for lawyers in order to ensure that the work of those firms which provide first-class, high-quality advice services to asylum claimants is replicated and that those who do not provide good quality work do not continue to be state-funded in this way.

Lord Goodhart

My Lords, during the passage of the Access to Justice Act 1999 we on these Benches pointed out the undesirability of having a single pot of money to fund all forms of legal aid. Does the Minister accept that we have been proved right and that increases in criminal and immigration spending have led to real cuts in civil legal aid, which has been cut in cash terms by 15 per cent over the past three years? Is it not right that this should be funded separately and that civil legal aid should be ring-fenced from the increases which have resulted from increased spending on criminal and immigration cases?

Lord Filkin

My Lords, I do not, because the realities of life are that, whether or not one puts things into separate pots, there is ultimately one pot which is the Government's overall resources from taxation and other sources; and governments have to make judgments about how to deploy that. The reality is that it is not just legal aid on immigration and asylum that has been rising but legal aid expenditure generally. We now spend £1.9 billion per year on immigration and asylum; only a few years ago—in 1997–98—we spent £1.5 billion. So there has been general pressure.

The other point in this respect of which the House should be aware—lest there is any danger of an impression that we are mean, cheap or resistant to supporting appropriate justice and hearings for asylum claims—is that I cannot find another country in Europe with anything like the quality of legal aid and advice given at initial hearings compared to this country. Austria, France, Germany and Italy provide no effective legal aid system at initial hearings.

So, while there is a need for reform, we should not get carried away with the view that we are looking to, in a sense, do other than uphold justice and fairness for asylum seekers while fulfilling a duty to getting economy out of the system.

The Countess of Mar

My Lords, I declare an interest as a member of the Immigration Appeal Tribunal. Is the noble Lord aware that there is a very noticeable difference between efficient and inefficient firms? Some clearly run a case for as long as possible even though it is absolutely hopeless while others deal with matters very smartly in a very short period of time and probably save taxpayers a huge amount of money. Is not the answer proper supervision by the Legal Services Commission?

Lord Filkin

My Lords, the noble Countess is absolutely right. There are some instances—I shall not detail the firms—where it is quite clear that the quality of work is not good, there is over-claiming and unmeritorious cases are being pursued. She is also right that a proper system of regulation—the accreditation system I referred to previously—must be part of the answer. Therefore, we are moving towards implementing that aspect of the proposal in the consultation paper, which found substantial support from many who responded to the invitation to consult.

Lord Phillips of Sudbury

My Lords, does the Minister realise that his answers work in exactly the opposite direction to the object he has just enunciated; namely, proper and good legal advice? My own firm—I declare an interest—has a legal aid franchise for immigration and asylum work. In a typical case, it takes my colleagues 10 to 12 hours to deal assiduously with an immigration application. The maximum amount of time to be permitted, if these proposals go through, is three hours. I put this dilemma to the Minister. In that position what would he do? Would he abandon legal aid—and a great many firms are on the point of doing that—or would he skimp the work, which the good firms are unwilling to do?

Lord Filkin

My Lords, I would look at some of the current practices by which legal time is spent on immigration and asylum cases. For example, if someone is a minor or has some mental incapacity there is a real benefit in having a lawyer present at the initial interview. However, we have not been able to identify much added value provided by having a lawyer sitting watching an interview between a Home Office official and an applicant for asylum. The research evidence does not show that that provides much benefit. Indeed, in most cases firms that claim for time put in on such cases often send a junior person rather than a qualified lawyer but, of course, claim the full rate.