Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Newton of Braintree

Tuesday 20th December 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, we are now coming to what I regard as the nitty-gritty of this Bill: what is going to be in scope and what is not? What is to be provided for? I have focused in particular on the area of welfare law, which I think is of extreme importance in our deliberations. I am speaking to Amendment 2, and, as your Lordships can see, to Amendments 29 and 78. They are concerned with the provision of legal aid in the appeal system in the tribunals. I have other amendments set down which I hope will address what I consider to be a very important part of our deliberations: how do you provide advice and assistance to people before they ever get into the tribunal system? When they are faced with a problem and they want a resolution of it, to whom do they go? I have amendments down which will deal with that part of the matter.

It seems to me to be a fundamental principle that if you get to the Second-tier Tribunal and then to the appeal courts beyond that and if, as will undoubtedly happen, the Government are represented by counsel and solicitors ready to argue the point in front of those experienced tribunals, under the principle of equality of arms, which is a very important principle under the European Convention on Human Rights, it is very important that the applicant—or appellant, as he will have become—should be fully represented as well. It would be quite improper, wrong and a breach of the convention if we were to have litigants in person in front of the Second-tier Tribunal and beyond seeking to put their case forward and to argue law as well as fact.

I sometimes have the feeling that the Ministry of Justice is living in the past. At one time, when the tribunal system was set up, it perhaps—I am not convinced of it—did not require experience, skilled advocacy and the putting together of a case. However, with all the legislation going through that my noble friend Lord Phillips of Sudbury is concerned about and with the new Bill on welfare law, it is clear that there are going to be some very important issues of law to be discussed at that level. Therefore it is quite simply a statement of principle in Amendment 2 and of practicality in the two other amendments to which I have referred that I urge upon your Lordships for your consideration. Equality of arms is vital to justice, and nowhere more so than in the field of welfare law. I beg to move.

[Lord Newton of Braintree]

My Lords, I shall intervene briefly. My remarks, such as they are—I hope they will not be long—apply also to quite a number of other amendments for which I shall not be able to stay, some of them in the name of the noble Lord, Lord Bach. At Second Reading, I indicated that I have a lot of sympathy with many of these concerns, not least those in the field of welfare, for exactly the reason that my noble friend Lord Thomas of Gresford has just outlined. At one and the same time, we are passing—or the Government are proposing that we should pass—significant changes in the welfare area affecting hundreds of thousands of people and we are seeking to reduce the scope for people to have legal aid or support of one kind or another in challenging some of the decisions that will then be made. I think I referred to it at Second Reading as a sort of pincer movement in that respect and I see no reason to change that judgment now.

That leads me to make two or three points. First, we really need something that we have not had, which is a combined impact assessment of the effect of the various pieces of legislation on poor and vulnerable people. We have not had it. This is not joined-up government and it is very difficult to make a judgment about what we collectively as a Parliament are doing to these people in those circumstances. That is aggravated by what has been acknowledged in this debate, which is that the Government do not know—I do not know whether the Minister will accept these words—what the financial effects of these measures will be, although we all know that there will be effects in increasing costs for other departments. The Government say that they cannot quantify them but I do not think that they would deny that they will be there. If they cannot quantify them, but cannot deny that they will be there, the savings figures are potentially meaningless.

Even within the Ministry of Justice, which I assume has costed the consequences, the extra costs of claimants, litigants and appellants defending themselves will almost inescapably drive up the costs of the Tribunals Service. Has that been measured? Is it taken into account in these savings figures? These are the questions to which we have to have answers. I do not want to see these amendments pressed to a Division tonight any more than I did the previous one, but they enable us to say that we need to know what we are doing before we can make a judgment in these matters.

I cannot stay for too much longer for reasons which I hope the House will understand but there are all sorts of things that one could say. Mediation was referred to earlier as well as alternative forms of advice in one way or another. Again, we need to know just what the position is. I should make the point that mediation has absolutely nothing to do with social welfare. You cannot have mediation about whether you are entitled to a benefit or not. You either are or you are not, although I accept that mediation may have a part to play in some other areas about which we are concerned.

In any event, we keep hearing talk about more cost-effective ways—I do not know the exact phrasing—of assistance, advice and so forth. But as has been said and as was illustrated in the debate on the CABs not much more than a week ago, most sources of advice are being squeezed either by this Bill—for example, the effect on law centres and other advisory services depending on pro bono work or legal aid work from lawyers—or by the squeeze on local authorities, which is putting the bite on CABs. We then hear talk about this, that or the other amount of money being available, but it is far from clear whether the Government know whether the availability of other forms of advice is going up or down and whether the measures will have any significant effect in either direction. We need to know more about all this before we can make a sensible judgment. I am very grateful to my noble friend for having raised this issue, even though I hope that he will not press it further tonight.

First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

Debate between Lord Thomas of Gresford and Lord Newton of Braintree

Wednesday 12th October 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, my noble friend said in introducing this order that many of the appeals are “wholly without merit”. The question is, which? That is what the tribunal exists to determine. It is impossible to start off on the basis that an awful lot of these appeals are without merit. My noble friend said that this bright idea came forward as a response to the spending challenge that was put out by the coalition Government when they came into power. It is a terrible idea when it is examined. The Explanatory Memorandum makes that quite clear.

The first point that has to be made is that it is one thing to fund the civil courts of this country by fees where a person brings an action—that is, he takes a decision to start a case by the issue of a writ or a summons—but, as the Explanatory Memorandum makes clear, this is the first instance of fees being imposed in tribunals where there has been action by the state against the individual. This is not an individual who started things up himself, as happens in High Court or county court proceedings; this is where the state has taken some action against which the individual wishes to appeal. The power to impose fees in tribunals has previously been exercised only in the areas of gambling and land.

We move from gambling and land to an extremely sensitive area of policy, immigration and asylum. Why? Paragraph 3.1 of the Explanatory Memorandum says that,

“the Government considers that it is not reasonable for the state to continue to fund the remaining cost of the appeals system. The Government believes that it is appropriate that users of the Tribunal contribute towards the cost of their appeal where they can afford to do so”.

However, as I say, this is not a situation where the appellant in one of these tribunals has initiated things; it is a case where he is appealing against an action that the state has taken.

It is not surprising, as paragraph 8.2 of the memorandum reveals, that:

“Respondents to the consultation were generally opposed to the introduction of fees”.

Indeed, when it came to the suggestion of imposing fees for the Upper Tribunals, they were,

“unanimous in their view that appellants should not pay”.

The Government have indeed responded to that.

One looks at the impact assessment to see how viable this scheme is. It really is very interesting. Under “Key assumptions” it says:

“It is unknown how prospective appellants will respond to fee-charging. A number of assumptions have therefore been made to produce illustrative estimates”—

it is a guess, in other words. It goes on to say:

“The Home Office is implementing significant changes to the UK’s immigration regime in 2011, which may affect the volume of appeals in future years and thus the costs and benefits of this proposal”.

The Government’s own proposals for changing the immigration regime will have an unknown impact. One would have thought that where there are changes to the regime, appeals will follow as people who are subject to orders made by the state test the boundaries of those changes as they have been made. It then says:

“The future success rate of appeals is unknown in which a cost award is made against UKBA”.

We are still in the realms of complete ignorance as to the effects of these proposals.

Paragraph 2.19 of the impact assessment, which refers to the principal groups impacted by the final proposal, says, under “Appellants”:

“Fees for Family Visit Visas were introduced in 2000 and subsequently reduced and then abolished in 2002. Research published by the Home Office in 2003 did not find conclusive evidence that these fees were a significant deterrent to legitimate FVV appeals. However, it is accepted that some individuals may currently choose to appeal because it is free but would not do so if a fee is payable”.

That assertion does not follow from the research that was done in 2003.

Paragraph 3.4 in the “Economic rationale” section says:

“The absence of fees means that the service is ‘over-consumed’”—

in other words, too many people appeal. It goes on to say that the users,

“are not exposed to any of the costs that the Tribunal incurs as a result of the appeal. A possible indicator of this ‘over-consumption’ is the failure rate of appeals, which represented a majority in each of the four main appeal types … disposed of in recent years”—

because there is a failure rate of appeals representing the majority, that shows that too many people apply. I go back to my original point that if many of the appeals are wholly without merit, the purpose of the tribunal is to determine which do have merit and which do not. You have to have a system that can come to that conclusion.

Paragraph 4.2, under “Cost Benefit Analysis”, says:

“We have no information on the scale of”,

fees for appeals that,

“will be paid by people living outside of the UK”.

Paragraph 4.3 says:

“We cannot predict how appellants will respond to the introduction of fee-charging”.

It goes on to say:

“For those appellants who will pay the fee, we assume that some of these appellants will decide not to appeal, but we cannot predict the size of this effect”.

Paragraph 4.6 points out that,

“there are no rules precluding individuals from submitting a new visa application rather than appealing an existing one”,

and it is cheaper to put in a new application under these rules than to appeal an adverse decision that has already been made. This means that instead of appealing, you pay a lesser fee and start an application all over again. That seems to me to be absolute nonsense.

When we look at ongoing costs, paragraph 4.27 says:

“These costs are likely to involve dealing with an increased volume of customer enquiries … and with the operation of a contract to collect, bank and administer the fee”.

There is a cost of administration there because you have to decide who is exempt and who is not. Someone has to make a decision: that is a person who is employed and paid a salary. Having done that, you then have all the business of collecting the fees. Paragraph 4.28 says:

“We expect that around three-quarters of asylum appellants would be exempt from paying fees, so debt recovery would never arise in any of these cases”—

that is regarded as a saving. In addition it says in paragraph 4.31 that,

“it has been agreed that HMCTS would pay any judge-ordered cost award to successful appellants and then recoup this sum of money monthly in arrears from UKBA. … However, it has not been possible to estimate these financial impacts at this time”.

Then, in paragraph 4.32, it says:

“UKBA would incur extra costs if some FVV appellants decide to re-apply for a visa instead of appealing because the visa fee would be less than the paper and oral appeal fee”.

Then, in paragraph 4.37, we see what the fee is to go towards. It is not going towards fixed costs, the buildings, but to variable costs, the fee paid judiciary. It says:

“In the short term only the variable cost element can be saved when the volume of appeals decreases, compared to the status quo. The Tribunal’s operating cost savings are based on”—

various estimates. I will not go into the detail of it. The point is that the whole purpose of these fees is to reduce applications and then some savings will be made in judge time.

I support my Government, of course, but I find it extraordinary that this tribunal order should have been brought forward in the way that it has. I think I have said all that I need to say on the topic.

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly with a few things that will not surprise my noble friend on the Front Bench at all. The first is that, having made a speech in support of the Government in a rather different atmosphere in the House earlier on, I now wish to revert to type. The second is that I was around in 2009 when there was consultation on some earlier proposals. I think that I may even have spoken against them. I certainly did not like them then and I do not like these now. The third is that I pricked up my ears when he mentioned the body that I used to chair, the Administrative Justice and Tribunals Council, which, not to my surprise, has expressed some reservations about these issues. I have got them somewhere but, having been preoccupied on other matters, I have not studied them as carefully as I should. The last thing, as I have already indicated, is that I am not very happy with them, particularly in respect of the family matters to which he referred and asylum seekers.

That said, and bearing in mind that it would be rash of me to call a vote against these proposals, which I would not want to do, I acknowledge that significant efforts seem to have been made to meet some of the concerns expressed, in terms of exemptions, the removal of the Upper Tier from these proposals, and the statement that appeals will be heard, presumably even if the money is not found up front. However, that does give rise to the question of the expense of collection after the event which was implied, or indeed explicit, in my noble friend’s speech just now.

I draw some comfort from all that, and also from the fact—which I probably have in common with the noble Lord on the opposition Front Bench—that there was an indication that some of these matters will be stirred up again by the legal aid Bill, on which I plan to stir up a bit of trouble myself if I get the opportunity. So I shall rest at this moment and wait for future occasions before pressing the matter any further.

Justice: Civil Litigation Reform

Debate between Lord Thomas of Gresford and Lord Newton of Braintree

Tuesday 29th March 2011 Lords Chamber

[Lord Thomas of Gresford]

I accept that rebuke and will leave it at that.

[Lord Newton of Braintree]

My Lords, I apologise. I was thinking it was a debate.