HL Deb 31 March 2004 vol 659 cc1411-30

8.37 p.m.

Lord Filkin rose to move that the draft regulations laid before the House on 12th February be approved [9th Report from the Joint Committee].

The noble Lord said: My Lords, I beg to move that the draft Community Legal Service (Scope) Regulations 2004 be approved. The regulations are made under section 6(7) of the Access to Justice Act 1999, which enables the Secretary of State to make regulations to amend Schedule 2 to the Act. These regulations will remove, attending an interview conducted on behalf of the Secretary of State with a view to his reaching a decision on a claim for asylum from the scope of the Community Legal Service. The regulations are subject to parliamentary approval under the affirmative resolution procedure. They were debated in Committee in another place on 8 March and were agreed without opposition.

I should explain to your Lordships why we are making these regulations. This change is part of a wider package of reforms to asylum legal aid that we first consulted on in June last year, in our "Public Consultation on Proposed Changes to Publicly Funded Immigration and Asylum Work". We proposed changes because of concern over the rising cost of asylum legal aid, which had risen from £81.3 million in 2000–01 to £174 million in 2002–03. At the same time, there was general concern about the level of control over quality, duplication and waste within the asylum legal aid system. Too many unmeritorious claims were being made and being pursued. There were, frankly, too many suppliers of insufficient quality doing the work. This had contributed to an increase in cost per case and an unsustainable level of expenditure.

We announced our response to the consultation on 27 November 2003. We made some significant changes to our original proposals; for example, introducing variable thresholds where we had initially proposed fixed caps on the amount of time that could be spent on cases. Our new proposals on thresholds and the accreditation of suppliers and the unique client number are being introduced from April this year by changes to the Legal Services Commission's contract with suppliers and by administrative changes. The regulations that we are considering are concerned only with removing the attendance of a representative at the substantive asylum interview. Perhaps I may explain why we are doing that.

At present, funding is available for a representative, who, in practice, is usually an agent or outdoor clerk working for a legally aided organisation representing an asylum seeker, to attend the substantive interview with the Home Office. However, as we said in our consultation paper, we believe that, in the majority of cases, attendance by the representative at those interviews is unnecessary, of no benefit to the client and, as a consequence, a waste of public funds. In reality, in most cases, the role played by the person accompanying the asylum seeker is simply that of a note-taker.

That is confirmed in the Immigration Law Practitioners' Association's Best Practice Guide to Making an Asylum Application, which states at Chapter 7: It has been accepted practice for many years that a client may have a clerk from his legal advisers present at substantive interviews with IND officials".

At this point, perhaps I may stress that we do not propose to remove the publicly funded attendance at the interview in all cases. There are important exceptions—unaccompanied minors; applicants going through the fast-track initial decision processes; those suffering from a recognised and verifiable mental incapacity, which makes it impractical to undergo an interview without support; applicants being interviewed at a police station or under the Police and Criminal Evidence Act 1984; or applicants alleged to pose a threat to national security.

Lord Avebury

My Lords, can the Minister tell me whether the words "mental incapacity", which he used just now, have the same meaning as they have in statute?

Lord Filkin

My Lords, essentially we have taken the definition of the words "mental incapacity" from the draft Mental Incapacity Bill. I am sure that in a moment I shall be able to put my hand on that and shall be able to quote the exact section. Therefore, the lawyer must make a judgment within that confine.

In all but the cases that I instanced, which we estimate are about a third of all interviews, funding for attendance by a representative at the substantive asylum interview will not be authorised. The Legal Services Commission will introduce rules to ensure that in the exceptional cases that I listed, where attendance at interview is authorised, this will be by the advisor in the case or the immigration supervisor, and not by an agent or outdoor clerk, until accreditation is introduced.

As the regulations remove funding for the attendance of a representative at all asylum interviews, the Secretary of State will issue a direction under Section 6(8) of the Access to Justice Act for 1 April 2004 to bring these exceptions back into scope. Therefore, we are removing attendance in unnecessary cases and ensuring quality representation in the exceptional cases.

Further, accreditation for publicly funded legal advisers will be introduced from April 2004 and will become compulsory by April 2005. This scheme will give additional assurance to the public that those unable to meet the required quality standards will have been properly excluded from providing services. Individuals who meet the standards will be able to put themselves forward as offering fully accredited services. In addition, those accredited to the top tier of the accreditation scheme will be awarded a 5 per cent uplift on normal rates because it is judged that they are offering particular value for money and a good service both to their client and to the public purse. The necessary regulation change to effect the uplift was laid before Parliament on 9 March 2004. All these changes were set out in our November announcement.

The Legal Services Commission will continually monitor the effectiveness and success of each aspect of the reforms following its introduction and report back to my department. In particular, we shall monitor the effect of these regulations with the Home Office to ensure that the non-attendance of representatives at interview in non-exceptional cases does not reduce the level of assurance of access to justice.

Perhaps I may give a little further clarification on the question raised by the noble Lord, Lord Avebury. "Mental incapacity" is defined in the Legal Services Commission new immigration contract as: A person who lacks capacity in relation to a matter if, at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in, the functioning of the mind or brain". That definition is taken from the draft Mental Incapacity Bill, Volume 1.

I confirm to the House that, in my view, the regulations are compatible with rights under the European Convention on Human Rights, and I commend them to the House.

Moved, That the draft regulations laid before the House on 12 February be approved [9th Report from the Joint Committee].—(Lord Filkin.)

Lord Kingsland

My Lords, I understand the Government to say of representation at the interview stage that in the majority of cases it is unnecessary, of no benefit to the client and a waste of public funds.

Our position mirrors that of the Constitutional Affairs Select Committee in another place. Legal aid should be available to solicitors for attending interviews, provided that it is established in each case that the presence of a qualified solicitor is justified and does, indeed, occur.

The evidence furnished by the applicant at the interview stage forms the basis on which the Secretary of State takes a decision about an asylum application. Yet it is at this stage that false impressions or misunderstandings about the applicant's conduct and motives are most likely to appear. This is especially true since interviews are not recorded, there are frequent language difficulties and statements are not read back to interviewees after they have been made. Since so many asylum decisions depend on an assessment of the asylum seeker's credibility, the presence of a qualified lawyer is often vital to ensure accuracy and procedural fairness at an interview.

We fear that if legal aid is withdrawn, it will further undermine the already fragile basis for rational decision making at the interview stage, thus increasing the likelihood of successful appeals. Although we do not intend to vote against the order, we shall seek to amend the Asylum and Immigration (Treatment of Claimants, etc.) Bill that is currently before your Lordships' House to reflect the view of the Constitutional Affairs Select Committee in another place to which I have already referred.

Lord Phillips of Sudbury

My Lords, I should declare an interest. My firm—at least until tomorrow—has always been a legal aid provider of immigration and asylum services.

Sadly, when the new regime comes into effect on 1 April, we will cease to do legal aid work for the first time since I started the firm 34 years ago. That is because the present regime has become bureaucratically heavy-handed. It is implemented by conscientious staff, but none of them has first-hand appreciation of the realities and problems of the processes which currently provide a system of application by claimants.

That is a good starting point—and a good example of the generalisation that I have just made—for pondering for a moment on the Government's repeated assertion that legal representation is not needed at what the Explanatory Note to the order correctly calls "the substantive interview".

Many organisations have briefed Members of the House on the order, including the Refugee Legal Council, the Law Society, the Coalition Against Legal Aid Cuts, the Churches Commission for Racial Justice and, of course, ILPA, the Immigration Law Practitioners' Association.

I particularly commend the briefing by the Refugee Legal Centre, because it derives from as deep and impartial an experience of the workings of this part of our legal system as is owned by any organisation in the land. It is an extremely clear and persuasive explanation of why the passage of the order will, first, achieve both significant and important unfairness—which will blemish this country's record—and, secondly, be self-defeating in legal aid savings.

Perhaps I may return to the issue of the substantive interview, not forgetting that that first interview is with an immigration officer who is often as inexperienced as the legal clerk attending the same. That forms the crucial factual ground upon which the decision will be taken by the senior immigration officer which, in relation to asylum, can be a real issue of life or death.

I hope the House will excuse me referring to what the Refugee Legal Centre says as it is basic to this matter and to the central assertion that lawyers are not necessary at such interviews. It states that there are several ways in which an interview may prove inappropriate or unsafe. First, conduct on the part of the interviewer or interpreter may be deliberately or unintentionally intimidating. Secondly, the interviewer—that is the immigration officer—may fail adequately to follow up answers or explore the substance of the asylum claim. Thirdly, the interviewer may use technical terms in questions or pose very long questions that may be summarised in the record so that the technical nature or complexity is not there disclosed. One must not forget that the person being interviewed is often fearful, unaccustomed to the culture, often having to use an interpreter and very often in a state of high anxiety. Fourthly, the interpretation may be inaccurate, or otherwise inadequate, for the interviewee. Fifthly, the record made by the interviewer may be inaccurate, either because it wrongly records what was said, or it fails fully to record what was said. Sixthly, the record, even if accurate as to what was said, may fail to record or may wrongly record important aspects of demeanour of the interviewee. Finally, even where the record records some aspect of demeanour, it is nevertheless unlikely to reveal the true extent of any such behaviour and, thereby, not disclose its true implication. Those last points tie in with Clause 7 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which introduces credibility in a way that will be extremely damaging to the claimant in the kind of interview to which the Refugee Legal Centre refers.

Perhaps I can compare the system that will prevail after these regulations come into effect with the system that prevails for any citizen of this country, or indeed a foreigner, charged with any criminal offence—let us say a shoplifting offence. Such a person has a right for a solicitor to be present in the police station when the police take a statement. Note too that the statement taken by the police in the presence of a legal adviser will not be passed to another member of the police force for a decision but to the Crown Prosecution Service, an independent body that will reach its own decision on the evidence as to whether to prosecute. By contrast, in the asylum interview, the immigration officer will pass his or her statement to a person further up the line in the same organisation. So there is no separation or Chinese wall that will ensure due impartiality.

In the criminal process, if the Crown Prosecution Service decides to prosecute, the matter goes to a magistrates' court. There the accused will have the opportunity to give afresh his or her evidence in open court, subject to cross-examination. By contrast, in an asylum case the statement will pass from one immigration officer to a senior immigration officer who, without any further contact with the claimant, has to make a decision.

One needs only to look at the radically different treatment of comparable situations to see why so many people outside this House are deeply anxious about the consequences. I say "comparable situations" because although one is a criminal process and the other is plainly not, the consequences for the person seeking asylum, if he or she has his or her case rejected at that stage, are potentially devastating.

I shall briefly refer to what I described as the self-defeating effect of this order in terms of cost. Two things will follow. First, the number of appeals that will be made in the future is bound to increase radically. A solicitor to whom the claimant goes, the first substantive interview having taken place, is bound to say to the client—as he or she will then be if he or she has not already been deported—"I wasn't at the interview. No one from my office was at the interview. Now that I explain to you what the statement says you are not satisfied that this reflects fairly either what you said or your case. We must appeal". The cost of that is likely to be very serious.

The second cost is of the appeal itself. The asylum and immigration tribunal, as it will be called, will not be dealing with a statement where someone has represented the claimant at the substantive interview and was able to help make it a true, accurate and full statement—there is no point in a representative being present unless it is to hone that statement into an acceptable form. Instead we shall be presented with a situation where at every turn that substantive statement will be challenged. There is going to be argument about what it meant—what the claimant now means or says. I do not think that one needs to be a lawyer to understand the consequences of that. It will mean an extreme extension of time for the hearing of these appeals.

At the moment it is proposed that the new tribunals should handle four cases per day. My bet is that it will be three or even two hearings a day if they are going to be extended and complicated because there is no remotely agreed statement on which the appeal is proceeding. So, in terms of cost, these proposals seem to us to be counter-productive.

I was most grateful to have a meeting with the Minister, David Lammy, and his officials where some of these matters were discussed. However, I am bound to say that one of the impediments to reaching an agreed forward path—no one is trying to score points off anyone; we all seek to deal with an extremely difficult problem in the way that best serves the public interest and justice—is that the Government say, and go on saying, "But the representatives at these substantive interviews are useless. They are a waste of time and money". There is some truth in that.

However, I must make two points. First, by failing to increase the rates of legal aid remuneration year after year, the firms dealing with these cases cannot afford to send experienced people to the interviews. There is no doubt about that. Secondly, the Government cannot have it both ways. They cannot on the one hand convict the legal profession of failing to provide quality services while failing to provide for those services. So, whichever way we go, there must be more sense on that front. I believe that if this order proceeds there will be serious injustice. There will be serious costs by way of appeal and the length of those appeals. There will be judicial review cases, and there will be a considerable blot on our escutcheon as regards the standards that we all seek to maintain in dealing with what, after all, is a singularly vulnerable group of people. It is no good for the Government to say that there are a lot of shysters among this lot who are swinging the lead, telling a pack of lies and just trying to get away with it. No doubt there are, but we must come up with a system that gives justice to the honest claimant. We cannot set our sights according to those who abuse the system. We need to deal with the abusers, but in the process we must not damage the justice due to the genuine claimant.

9.00 p.m.

Earl Russell

My Lords, I believe that it can be argued that the asylum entrance interview is the most important interview in English law. Since I had the very great pleasure of assisting Lord Williams of Mostyn, speaking in his private capacity, in amending the Human Rights Bill to incorporate the protocol prohibiting the death penalty, no purely domestic legal proceeding has threatened life. If a genuine asylum seeker is returned to the country from which he came, his life is threatened.

I agree with my noble friend Lord Phillips. It is curious that this should be the only instance that does not attract legal help. The Government says in the Explanatory Memorandum: The Government believes that in the majority of cases this is unnecessary, of no benefit to the client and a waste of public funds". I listened with some interest to see what reasons the Minister had for that belief. If he has any more than he has given us, I would be glad to hear them.

He had two things to say, as I understand it. First, that there were some suppliers of inferior quality, that is to say that there are some bad lawyers. Measures have been taken about that, which is one of the few things in this field on which we and the Government have wholeheartedly co-operated. I also remember in this Chamber a group of eminent QCs conducting a Dutch auction about what a hash they had made of their first case, how little they had been paid, and how awful the consequences were for the client. It was won by a former Chancellor of the Exchequer, who said, "I got seven and sixpence, and my client got seven years". The Government's principle does a little too much. It is an argument against having any lawyers anywhere. From Jack Cade onwards, there have been those who have wanted that. I do not think that this House is among them.

Secondly, the Government also said that they give aid to unmeritorious persons. That is simply another way of saying that the Minister does not agree with all their decisions. In fact, it is saying, like Mr Bumble, that, The law is a ass". It did not do Mr Bumble any good, and it will not do Mr Blunkett any more good.

We all agree that the weakest point in the whole system of asylum is the poor quality of initial decisions. That is why cases take so long, why there are so many appeals, and why there are so many judicial reviews. Would it not make sense to try to improve the first stage of initial decision? The Government are always introducing measures designed to induce haste, which have the opposite effect. They remind me of a former neighbour of mine, who was once in a hurry to open the wine for dinner, but he could not find his corkscrew. Being an old cavalry officer, he slashed the bottles open with his old sword, and then had to strain it through muslin to get the glass out. It took a lot longer than it would have done otherwise. That is a fair parallel for the Government's asylum policy.

There are plenty of examples of this. I remember one of the Campsfield Nine, whose case had been through umpteen stages of proceedings, until Lord Williams of Mostyn and I finally got together on it. It instantly appeared that the man's claim was genuine and should be allowed. This was after about nine months of proceedings and a day or two before he had been about to be sent back to West Africa. That is far too common a story.

There are far too many cases where it depends on the use of a wrong dialect or an inaccurate opinion about the country concerned—like the belief that the Roma were not persecuted in society at precisely the moment that the Foreign Office was advising that they could not he admitted to the EU because it did persecute the Roma.

The Minister says that there are exceptions. I have always been puzzled, especially as a boy, by the proverb that the exception proves the rule. However, the full proverb makes a great deal more sense. "Proves" is used in the sense of test. The full proverb is that the exception proves the rule in those things which are not excepted. Should I grant my noble friend Lord Addington all my trees, I would be held to have excluded my orchard. But should I grant him all my trees except my pear tree, I would be held to have included my apple trees. Therefore, let us look at what is not in the Government's list of exceptions.

There is no mention of victims of rape or victims of torture although we all know how difficult it is to get them to tell their story. There is mental incapacity but not severe illness. I think of one case personally known to me who arrived in an open canvas lorry with a temperature which was found, once she had made her claim, to be 106. I do not think that she was in a fit state to tell her story. Another claimant personally known to me, who saw her grandparents shot dead in her sight, did not speak of anything for three months. I do not think that she was fit to tell her story. She is not included in the list of exceptions either.

There is no inclusion of the case which is distressingly common of raping the wife in the sight of the husband. I could go on. I shall not. There are plenty more of these cases. The exceptions are not particularly generously construed. So if the exception proves the rule, it does not prove very much.

All of these things are liable to create further judicial proceedings. I do not know whether the initial asylum claim could be held to be a judicial proceeding but I ask the Minister this. Has he taken advice on whether the absence of a right to legal representation might possibly engage ECHR Article 6 on the right to a fair trial? It is a question I raise tentatively but I should rather like to know the answer.

As regards the prosecutor interviewer, I have in my papers one case from an interviewer in Gatwick where the interviewer referred sneeringly, sarcastically, to every mention of a case where someone had tried to shoot the applicant. The Home Office held the claim not to be genuine but it was overset on appeal and ultimately the person was allowed in. That is just the sort of case in which the Home Office's attitude to the initial claimant ends with taking a great deal more time and letting the person in at the end.

We have a case here also of a Kurdish hunger striker who was barely fit to speak. The record was totally incoherent. He was rejected also. He was ultimately accepted on appeal. When any government get desperately frightened of something, they always end up doing things which make that particular thing work. This is not an exception.

Lord Avebury

My Lords, as my noble friend has just said, the exceptions do not cover many categories of people such as torture victims and victims of rape, whose cases have been reported in shocking detail by many of the practitioners who have written to us prior to this debate. Even with the categories that have been mentioned, the noble Lord, Lord Filkin, worsened my fears when he gave the definition of mental incapacity. That is an extremely severe test. Has the noble Lord consulted any of the mental health organisations about whether people who do not come within the definition of mental incapacity but do suffer from mental illness are capable of giving the right sort of answers or making the right sort of statement on their own behalf at the crucial ordeal of the first statement?

It has been agreed on all sides, particularly in the debates on the Asylum and Immigration (Treatment of Claimants, etc.) Bill, that the initial decision-making process is seriously defective. That is the main reason why thousands of decisions are reversed by the appellate authorities. Is it not perverse, therefore, to make it even more likely that uncorrected errors will be made at the first interview, increasing the number of decisions, as my noble friend Lord Phillips of Sudbury, has explained, which have to be corrected higher up and at much greater cost than the savings achieved by the order? Even if serious procedural mistakes were not being made at the interview stage—we have many dozens of examples to show that there are—the absence of representation could lead to a lowering of standards for those who do not come within the exceptions mentioned.

I take it that we are all agreed that full disclosure at the earliest possible stage is in the interest of the applicant, the Home Office and the public. The presence of the representative, even though he may not be legally qualified, gives the timid applicant the confidence to speak freely. That seems to have been acknowledged by the Home Office; it announced at a recent stakeholders' meeting that certain vulnerable individuals—I take it that that means people who are not covered by the exceptions—would be allowed to have a friend or relative present at the interview. Would the noble Lord, Lord Filkin, care to say anything about this in his reply? Will he deal with the awkward questions that, to my mind, it raises about confidentiality and about reducing the applicant's willingness to make full disclosure—for example, where she does not want the friend or relative to know that she has been a victim of rape or torture?

As both my noble friends have said, it is in the nature of the asylum process that the interview is of peculiar significance. Unlike in criminal cases, it is almost always the only direct evidence of the case to be proved the rest is all background information about the situation in the country of origin and about the experience of other people who belong to the same group as the applicant, as checks on the credibility of her story. In asylum cases, moreover, the interviewer, as my noble friend Lord Phillips, explained, represents the authority that investigates, decides on, and, in appeal proceedings, will be the opponent of the case made out at interview.

Because of the vulnerability of the asylum seeker and her unfamiliarity with the process, she will not necessarily be able to identify inappropriate conduct on the part of the interviewer or interpreter which an experienced representative would pick up at once. My noble friend went into some detail on the excellent note that we all had from the Refugee Legal Centre.

None of the flaws which occur at the interview stage can be satisfactorily addressed unless the applicant is represented at the interview. Many of them, such as errors of interpretation and errors in the record are beyond the applicant's knowledge in the very nature of things. When the written record comes to her attention, she will not necessarily be able to pick up the fact that a particular error in interpretation has been made. Yet the interview, which is already a crucial element in the initial decision-making process, is about to be given even greater weight because the Bill before your Lordships provides that the applicant's "behaviour" may be taken as giving an adverse indication of her credibility.

Such "behaviour" may include her conduct or demeanour at interview and, as my noble friend explained, if there were questions about that later on, it might lead to the representative undertaking careful inquiry about any such matters that might be relevant to the decision. As of now, that would be unnecessary, because the representative is present at the interview; but after the Bill comes into effect, the time needed to cover those matters properly might be equal to, or even greater than, the time it would have taken to be present at the interview.

The importance of the interview record means that there is likely to be more litigation concerning the record or the conduct of the interview. My noble friend Lord Phillips has already explained that. In some cases, that might even possibly lead to judicial review challenges to the interview itself—but routinely, the extension of the litigation of the interview process in the course of any appeal. The consequent increase in cost is likely to be compounded by the fact that removing the representative from the interview lessens the incentive for the interviewer and interpreter to ensure that it is conducted fairly. In some cases, that may lead to abuse and, in others, it may encourage or allow the interviewer or interpreter to be less scrupulous than he would otherwise be in observing principles of fairness. In addition to the necessity of exploring these matters in appeals, there may be administrative delays while arguments about what actually happened at interviews are explored—in some cases, leading to new interviews.

I want to ask the Minister whether he has considered what was said in another place about the use of tape-recording for interviews. He may remember that, when we debated the 2002 Bill, I moved an amendment for that purpose. The noble Lord, Lord Bassam, said: The current system works reasonably well and there are fairly good and accurate records of interviews". But he also said, in answer to the noble Lord, Lord Hylton, who asked him about first interviews that, it might have some greater potential benefit in those kinds of cases".—[Official Report, 15/7/02; col. 1072.] The noble Lord, Lord Bassam, and the Home Office concluded, however, that with the existing safeguards, and particularly the presence of a representative, tape-recording was unnecessary. Now that there is not going to be a representative, the case for tape-recording becomes overwhelming.

If all interviews were recorded, something like 12 million interviews would have been involved; but at the time when the noble Lord, Lord Bassam, was speaking, there were some 76,000—and, of course, the number would be much smaller in 2004. Will the Government take another look at the idea so as to provide an accurate record, in cases when any dispute arises, and ensure that it would not simply be a case of the applicant's word against that of Home Office officials? Mr David Lammy was asked to consider the matter in the Standing Committee on Delegated Legislation, but he dismissed it on the grounds that it would be unusual in civil rather than criminal proceedings. When pressed by Mr Dominic Grieve, he replied: I have said what I want to say to the hon. Gentleman on that point".—[Official Report, Commons, Delegated Legislation Standing Committee, 8/3/04; col. 8.] That closed the discussion.

I also want to ask the Minister how, when there is doubt about the applicant falling within one or other of the exceptions, the matter is to be resolved. Let us suppose, for example, that there is some doubt as to whether a person claiming to be 17 years old is in fact that age, or whether he has reached the age of majority. Would the only safe course of action not be to say that where the applicant claims to belong to one of the exempted categories, representation will be allowed so as to avoid argument on the matter later at appeal stage?

The Home Office are trying to discourage asylum seekers from seeking legal advice at any time and, in the DVD that is going to be used for briefing those asylum seekers at the start of the process, it is emphasising that representation is not really necessary at all and that the initial interview is the only chance that the applicant has to tell the officials about his case. If he has forgotten something, or is advised later on that something he omitted is relevant, is that to be ignored?

In case number 8—to which I drew the Minister's attention—cited by the Coalition Against Legal Aid Cuts, the immigration authorities agreed to consider a full statement prepared with the advice of a solicitor following many complaints about the conduct of the interview. In that case, if there had been no representative at the interview, the applicant would probably not have complained, or if he had done so, he would not have been able to substantiate the complaint with independent corroboration.

This proposal in this order is based on the notion, as the Minister has explained, that the presence of a representative at the initial interview is unnecessary, of no benefit to the client, and a waste of money. The overwhelming majority of practitioners disagree with the noble Lord. I remind him that most of them are not in it for the money. As my noble friend Lord Phillips of Sudbury has explained, he and many other practitioners are leaving because they cannot give their clients the service that they need. Practitioners have sent us many examples of the benefits of representation at this stage and of how the errors that they pick up can actually save money later on. We believe that these proposals will lead to injustice and to further delays and expense at the appeal stage.

Lord Goodhart

My Lords, I rise very briefly to say first of all that I fully concur with what my noble friends have said. I do not think it is necessary for me to add to that because they have said everything that could possibly be said. A very powerful case has been made.

I would draw attention to the point raised by my noble friend Lord Avebury about tape recordings. That is something that is not inconsistent with this order. Indeed, it is something that I think is made necessary by this order. I hope that the Government will he prepared to give consideration to tape recording all interviews and providing copies of the tape to asylum seekers. It is quite clear that in the absence of a tape it will be very difficult indeed, and in many cases impossible, to challenge misunderstandings, unfair or inadequate procedure, or the accuracy of the note taken on behalf of the interviewer.

We have reluctantly decided not to challenge the making of this order, but like the noble Lord, Lord Kingsland, we will seek to amend the Asylum and Immigration (Treatment of Claimants, etc) Bill now before your Lordships' House in order to reverse the effect of this order.

Lord Filkin

My Lords, I rise to address the questions raised by both Opposition Benches. If I do not cover them all, I shall drop a line to noble Lords setting out further thoughts on the questions.

The noble Lord, Lord Kingsland, set out the challenge which the noble Lord, Lord Goodhart, echoed, seeking to change the Bill that we will consider on a subsequent occasion, to make available, if justified, qualified lawyers, at the initial interview. That is exactly what the Government believe that this order does. Where there is a representative in the exceptional cases, which are about a third of all cases, he will be a qualified person, rather than unqualified. The debate will therefore turn on when it is justified. We will perhaps leave that to a later date.

Lord Phillips of Sudbury

My Lords, I am most grateful to the Minister for giving way and I am sorry to interrupt at the beginning of his speech, but will he accept that the exceptions that the Government are providing for in the order do not cover the classes of case that my noble friend has enunciated: torture, rape and a myriad others.

Lord Filkin

My Lords, with the greatest of courtesy to the noble Lord, Lord Phillips, if he will give me a little space I shall do my best to address all of the issues that have been raised. Please do not assume that when I have not covered them all in the first 30 seconds, I shall not do so. Please come to your feet, as I am sure that you will, at the end on those that I have forgotten, which I am bound to do.

The first point, in response to the noble Lord, Lord Kingsland, is that written evidence submitted by the applicant for refuge, which is a fundamentally important part of the process and is submitted to the Home Office official, usually benefits from specialist legal advice that is funded under the system and will continue to be. So the submission of the case as to why asylum should be granted will benefit from that advice.

Secondly, the applicant will he given a copy of the transcript at the end of the interview. He will have what the caseworker recorded. Therefore, he is in a position to take it away and to discuss it with his adviser and, if he feels it appropriate, to raise a challenge on that.

The noble Lord, Lord Kingsland, argued that the presence of a qualified lawyer was vital for justice to he done. I do not wish to engage at length with the noble Lord on this matter, but that is not the present situation. It is not happening now and I do believe that we have seen evidence that it has led to injustice.

The case for an increase in successful appeals has also been referred to by the noble Lord, Lord Kingsland, and others. It has been considered as part of these measures. We would be foolish if we believed that that was the case, partly because there is already a high proportion of appeals against decisions and therefore an appeal process is engaged. Clearly, a person who is appealing is not doing so twice through the same process. However, I have said, and I repeat, that it is important for the system to be monitored closely to see how it works in practice, because governments can make what they believe to be wise prospective moves, but they have to be tested in practice to see how they operate.

There are very few formal complaints against the initial interview. I must emphasise that even after the changes are implemented we will have a system of legal aid and advice to asylum applicants that is greater than that operated by the vast majority of other European countries under ECHR. That does not mean that we are perfect, but it does not mean that there is a self-evident case that we are failing in our responsibilities.

The noble Lord, Lord Phillips of Sudbury, said that the Legal Services Commission has no front line experience. The nationality, immigration and asylum team that oversees the system is staffed and led mainly by immigration lawyers recruited from firms. So the noble Lord's assertion was somewhat harsh.

It is difficult for me to comment on the briefing by the Refugee Legal Centre, because I have not seen it. It would do me good to read it and I will ask officials to see whether we can trace a copy. I also agree with the noble Lord, Lord Phillips, that the first interview with an immigration officer is a crucial factual ground. It is fundamentally important to have the facts of the applicant's case clearly set out and established as early as possible in the process. The noble Lord, Lord Avebury, may have made a similar point. I totally agree with him on that and it is what a skilled interviewer seeks to do.

I have just been given the Refugee Legal Centre's advice to read, but I shall resist that temptation as it might delay the House.

I was saying that it is important to set out the facts of a case as early as possible so that the evidence of the case is there and considered. I have partly touched on the written representations that have already been submitted by an applicant as part of that.

The noble Lord, Lord Phillips, gave a list—conduct, failure to follow up the use of technical terms, interpretation, inaccuracy of the record, failure to record demeanour—of reasons why there was concern that the process might be at risk or flawed. I would not argue that there will automatically be no risk at all. There is risk in any system, but one would expect that a person who had undergone an interview with a Home Office official would be asked by their adviser whether they felt that the process had been fair, whether they felt that they had been listened to, and whether they felt that they had been given the opportunity to express their evidence. If they felt that the process was flawed a complaint could be made; or if they felt that there was evidence that had not been accurately reflected in the note, there would be an opportunity for further submissions or representations to be made.

It has been argued that it is not comparable to a criminal procedure and that is true. But it is not a criminal procedure. I do not expect this to be welcomed, but I suggest that the system we are proposing is better than the status quo. Under the current system, as I believe has been accepted, in most cases one has present an unqualified person, a legal clerk. Under the system that we are introducing by this regulation, in the cases where it most matters, there will be a qualified lawyer present who has qualifications and skills in asylum matters. That is reinforced by the fact that we are bringing in an accreditation scheme which will ensure that we have qualified legal practitioners. I believe that there is a general welcome for that provision throughout the House.

Clearly, if as a consequence of the process the applicant or the adviser believes that the claim has not been given proper consideration or the outcome or the decision is inappropriate, there is the right of appeal. I have touched on the argument about it being self-defeating on costs because of more appeals. The noble Lord, Lord Phillips, signalled that the appeals themselves might be longer if there was a substantial amount of debate about the accuracy of the statement. That is one of the issues we should bear in mind and monitor as we see how it works out. If the noble Lord is right, that will be a cause for concern.

Lord Kingsland

My Lords, I am most grateful to the noble Lord for giving way. How does he envisage that the monitoring will take place?

Lord Filkin

My Lords, both the Department for Constitutional Affairs and the Home Office have a joint interest in the monitoring process. I envisage that it will be active monitoring from the beginning of the process. One would expect any system of monitoring to try to identify what were the criteria of a system working well or poorly. One would have to have some explicit criteria for evaluating any scheme which would include any increase in complaints against the interview, an increase in appeals as a consequence or an increase in disputes at appeal stage. That was touched on by the noble Lord, Lord Phillips. Those would be some of the criteria, but there would be others.

I would expect such a system to have explicit criteria. There should be a process of gathering evidence, either by sample or spot checks, over a period of time so that informed judgments could be made as to whether it was working. That would he necessary to have an effective monitoring system.

Earl Russell

My Lords, in judging the system by the presence or absence of complaint, is the Minister making adequate allowance for the overwhelming pressure on the applicant to please the people on whom the whole of his future rests?

Lord Filkin

My Lords, no. I shall never take the view that any public service function can be judged simply by whether there are complaints, for self-evident reasons. That is one of the criteria that one should look at, and there are others. I was seeking to sketch some of the criteria which I believe would be relevant, and there will be others.

The noble Lord, Lord Phillips of Sudbury, used the term "shysters". I am not sure that I can spell it, but I know exactly what he means. We are optimistic that those legal representatives or firms who did not appear to uphold good standards of practice in this crucially important area of law, advice and practice will be removed by the process of accreditation. I believe we have taken appropriate steps. I believe that has been well recognised and welcomed by most specialists in the field as it is important that there are high quality legal advisers. Bad quality legal advisers discredit the system, which is against the interests of the applicant as well.

The noble Earl, Lord Russell, is right to remind us that genuine asylum seekers risk life if they are returned to a place where they are at genuine risk. That is why we have to be thoughtful and conscious of the interests of justice and that there are adequate appeal processes.

I do not believe that it is on that issue that we shall see injustices significantly hinge for the following reason. As the House knows, the role of the unqualified clerk in these interviews is essentially a silent and a passive one. He is not an active participant in the process. He sits there, listens and perhaps makes notes. He does not actively intervene.

I turn to the issue of poor quality initial decisions. It is undoubtedly correct that IND has recognised the importance of improving the quality of its initial decisions. Much work has been done on that in the past two years. The significant reduction in the number of applicants coming into the country for asylum also gives them greater scope to concentrate on raising the quality of decisions and ensuring that the quality of staff carrying out interviews and taking initial decisions is as high as we would expect.

The noble Earl, Lord Russell, touched on wrong advice. Clearly there have been occasions when, certainly with the benefit of hindsight, one has seen a lag between advice catching up with reality. If I recollect correctly, some of the measures that were put in place under the 2002 Act concerning independent country advice processes are intended to try to ensure that such situations are utterly exceptional.

Comments were made about the level of exceptions. That is one of the issues that will need to be kept under review. What one is asking applicants to do is, essentially, to tell their story. One is asking no more than that. One is asking them to tell what happened to them, why they consider it is unsafe for them to be in the country from which they came and why they are at risk. That is essentially what a good interviewer does. He or she does not try to catch them out but to hear their story and then, by further probing, to see whether the veracity of the story can be tested and whether it constitutes a well made case. An interviewer who seeks not to put an applicant at ease and seeks to make it difficult for him or her to debate their case, is clearly a had interviewer. One would hope that the quality assurance processes in IND would increasingly weed out any such interviewers.

Where a client is suffering mental incapacity as a result of torture, interview attendants will be permitted under the arrangements that we have discussed. I can perhaps go slightly further on that point. I have not pleased the noble Lord, Lord Avebury, by what I have said on that ut essentially the judgment on mental incapacity will be made in practice by the solicitor who is interviewing the person. He or she will clearly have a professional obligation to exercise that judgment in accordance with the regulations but nevertheless they have the freedom to make that decision themselves and therefore to make an application for exception on that count.

Lord Avebury

My Lords, I asked the Minister to tell the House whether he had taken any advice from the organisations concerned with mental health on the threshold which has to be attained before someone falls into the exception category.

Lord Filkin

My Lords, I assure the noble Lord that that matter is covered in my rather extensive pile of briefing notes. However, I turn to it now. We certainly consulted a whole range of organisations, including mental health organisations, about the general changes to the process. We have not consulted specialist mental health organisations on the specific definition of -mental incapacity", which I believe was the question that the noble Lord asked.

The noble Earl, Lord Russell, asked about Article 6.1 of ECHR. As I said in my opening remarks, we have taken advice and I made the statement that we are compliant with ECHR. I could say more but I think that it would be more helpful to write to the noble Earl giving further detail rather than ad libbing at this point in time.

A number of noble Lords touched on the issue of people who are particularly vulnerable; for example, victims of torture, illiterate applicants, traumatised victims and mentally disturbed applicants. The IND guidance on interviewees requires particular care to be taken in those circumstances and is explicit in that respect. It sets out how the interviewer has a duty to try to work to ensure that they are put at ease. Again, because time is limited, I will be pleased to write to the noble Lord, Lord Avebury, setting out what is expected of interviewers in those respects as part of their casework guidance and training.

On the issue of whether criminal interviewees get legal aid, the asylum interview is a civil fact-finding interview and the representative—normally a clerk—is not able to play the same role as in a criminal interview. The representative can still make representations after the interview if issues arise or are thought to have arisen in the process.

As regards tape-recording—again I think that point was raised by the noble Lord, Lord Avebury, correct me if I am wrong—the noble Lord is right. It was last costed, I think, in 1999 when it was estimated at about £8 million, plus running costs of £1.2 million. I would have to check what the level of asylum intake was at that point, because I think we have probably gone up from then and then down. I do not know whether we are at the same point as we were in 1999, but I am certain that I can give the noble Lord a rough figure as to whether we are still in the same ball park on costs.

The further point as to why we do not believe tape-recording would be desirable or necessary is that a written transcript still needs to be produced. The processes of recording, translating and transcribing would delay the decision-making process. I studied that in 1998 and the evidence of a feasibility study suggested that some asylum applicants were less willing to participate when an interview was tape-recorded, leading to a rise in non-compliance refusals. I share with the House what we know of that process. Nevertheless, I will do a further note on that so that we touch on some of those costing points in that respect.

On the question of who decides which category if any applies as an exception, the lawyer will make the decision. Lawyers operate under codes of practice; they will be expected to make that decision in accordance with the law. Nevertheless, I think that gives some measure of discretion in this instance in perhaps the way that would have been hoped, so that one is not driving a cruelly hard dividing line.

I have touched on the different view of a number of appeals, but again I will signal that we need to monitor that. It is important that we make two matters clear. First, that we are convinced, for the reasons that I set out, that this is a necessary and reasonable step which will not compromise justice. But, secondly, that we will look at the points that have been made in this debate and try to ensure that they inform the monitoring that I have affirmed, because these are issues of justice, issues of importance, and we have to try to do two things at once: to make effective use of public money so as not have a wasteful asylum process, but also to try to ensure that justice is done to asylum applicants in our society. I commend the regulations to the House.

On Question, Motion agreed to.

House adjourned at seventeen minutes before ten o'clock.