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Lord Renton: May I say that I have no objection in principle to Amendments Nos. 100, 102 and 104, although I would have thought it better to leave those to the discretion of the noble and learned Lord the Lord Chancellor when exercising his power, if he ever does so, to add to paragraph 5 of the second schedule. But I must make absolutely plain that for reasons I shall give I am strongly opposed to Amendments Nos. 101 and 103. I say that with deep respect to the noble and learned Lord, Lord Archer of Sandwell, for whom I have had a high regard for many years, having known him well in both Houses of Parliament as well as a member of the Bar.
The trouble really is this. We have to acknowledge that our country, probably more than any other country in the world, is subject to pressure from immigration. We have bogus asylum seekers; we have people who come here not as asylum seekers but in a speculative way, hoping that they will be allowed eventually to stay.
Lord Goodhart: I am most grateful to the noble Lord, Lord Renton, for giving way. When he says that the pressure on this country is greater than on any other country in the world, does he seriously suggest that the pressure is greater than that on Germany and Austria which face very large incursions of refugees from eastern Europe and the former Yugoslavia?
Lord Renton: I agree that pressure has been very great in the past, but it is not within my knowledge that it continues to be so, whereas year after year we have vast numbers of people wishing to come here and settle in overcrowded parts of England; not so much in Scotland or Wales. I shall not give way again, although I may later. I think I should be allowed to develop my argument. If noble Lords are afraid of hearing my argument, so much the worse for them.
To grant the kind of aid which is being proposed in respect of appearances before the immigration appeal authorities and the immigration appeal tribunals would produce, I am sure, many more bogus asylum seekers coming here speculatively and hoping to get leave to remain. I do not consider that a wise use of public funds, especially when the noble and learned Lord the Lord Chancellor, faced with tremendous public expenditure on legal aid, is doing his very best under the Bill to try to change the system and make it more rational. I do not consider it would be wise for your Lordships to accept Amendments Nos. 101 and 103. I now give way.
Lord Archer of Sandwell: The noble Lord is typically generous and I am most grateful to him for giving way. He uses the words "bogus asylum seekers". How is it to be known whether an asylum seeker is bogus until his case has been competently deployed and competently considered?
Lord Renton: If I may say so, I think that a somewhat tendentious argument. We know that many people come here speculatively and we would only increase the numbers doing so if they were given public funds to help establish themselves here. I must confess that I do not think that is in the public interest.
Lord Clinton-Davis: I support, certainly in principle, the amendments we are addressing. I record a prior interest. I was at one time chairman of the Refugee Council, a body which undertakes invaluable work on behalf of people who are extremely vulnerable, many of them inarticulate and most of them incapable of coping with the sort of problems we are talking about.
The burdens borne by European countries do not compare with those in impoverished countries of Africa which have immigration problems of an unparalleled size. I think it is fair to say that in the light of the noble Lord's remarks.
As to the amendment, I adopt the argument adduced by my noble and learned friend Lord Archer. The issues being dealt with here can, even if they concern only a minority of cases, be matters of life or death. They have the most profound significance for many of the people who appear before the tribunals. I would also add--it goes without saying--that by no means all asylum seekers should be declared "bogus" before their cases have even been investigated properly.
I understand the arguments about priorities which I am sure my noble and learned friend will seek to adduce. I remind him that those arguments were present before in connection with the Society of Labour Lawyers, of which he is a distinguished co-president along with my noble and learned friend Lord Archer. I too have the privilege of being a co-president. I think the society is on record as having made a statement defending legal aid before the sorts of tribunals we are addressing. So there is something of an inconsistency about the current situation as it is being argued under the Bill. The Society of Labour Lawyers is very clearly on record over a long period of time as being in support of the very proposition now being discussed.
Lord Renton: Before the noble Lord sits down, does he agree that even if we are not getting more people seeking immigration here, relatively speaking, than other countries, the number is higher than is acceptable in the interests of the people of this country?
Lord Clinton-Davis: I am not going to enter into an argument because the matter cannot be dealt with properly in this way. I do not accept the argument that the noble Lord has adduced; nor do I accept that bogus immigrants are pouring into the country and that they are likely to get legal aid to appear before these tribunals. That is a rather speculative possibility and in fact one which is very unlikely to happen.
Lord Mackay of Clashfern: In relation to Amendments Nos. 101 and 103, it occurs to me to inquire whether, once the legal aid system is altered in accordance with this Bill, it might not be quite a good idea to invite the noble and learned Lord the Lord Chancellor and his colleague the Home Secretary to pass over the budget for support of representation in these tribunals so that it might be brought into the community legal service as part of the planned integration and
The Lord Chancellor: The proposition is that Schedule 2 should be amended to allow legal aid to be available for representation in proceedings before employment tribunals--the old industrial tribunals--and social security tribunals. I speak from personal experience, and I believe that my experience would be confirmed by practitioners today. I have always made my views crystal clear, and my noble friend Lord Clinton-Davis has called attention to that.
I accept that employment tribunals follow procedures similar to those of the courts. That is because their function, like that of the courts, is to determine what are often complex factual and legal issues between private parties. Legal complexity can in some cases exceed anything which appears in the county courts. There can, I agree, be professional cross-examination of witnesses, and lawyers frequently appear in these tribunals. Applicants can be unrepresented in difficult cases, while employers are represented, and that is unequal representation. I accept that there are certainly some cases in which legal representation is desirable.
I recognise that representation is already provided for in proceedings before employment tribunals from a number of sources, including trades unions and statutory bodies such as the Commission for Racial Equality and the Equal Opportunities Commission. Nevertheless, it is clear to me that many people are unable to obtain representation when they need it, and it would be unworthy of me to seek to deny that.
I have already extended the availability of conditional fee agreements to all civil courts and tribunals, and under the Bill I propose changes to make these agreements more attractive. As I have already said, it is my belief that where the private sector can provide an effective service, such as conditional fee agreements, public money should not be spent. Conditional fee agreements are available for people to use in relation to employment disputes in employment tribunals. However, under the employment tribunals' costs rules, costs do not follow the event as in almost all other litigation where significant sums of money are recovered. A successful applicant in the employment tribunal under a conditional fee agreement would therefore have to pay his lawyer's success fee and the insurance premium from the damages awarded because he could not recover these from the respondent.
At the Home Affairs Select Committee on 13th October 1997 I was asked whether I planned to expand legal aid to cover representation at tribunals. The answer I gave on that day was that it would not be possible until I had control over expenditure. The reformed scheme which I propose to introduce under the Bill should, over time, give me that control and the flexibility required to target resources on deserving cases. I am willing to consider whether legal aid could be made available, in certain limited circumstances, for representation in proceedings before employment tribunals.
However, there are two points I wish to make. First, it would be premature to reach any decisions about extending publicly-funded representation in tribunal proceedings before the Government have completed a review, on which they are now embarked, of the extent to which current procedures and other arrangements, including representation, comply with our ECHR and EU obligations and until we have identified the options for ensuring compliance in the future; and, secondly, in any event, within my controlled budget I could not here and now realistically consider the availability of legal aid in employment tribunals beyond a very limited category of case, for to admit it even to that extent would be at the expense of other priority parts of the budget.
Legal aid could not conceivably be granted in present circumstances in every employment case. My general approach is clear. Public funding should not support weak cases. It should not displace other forms of support. Cases need to be tested for priority of claim under a controlled budget. Factors to be considered would include the complexity of the case, factually or legally, the public importance of the issues at stake and the availability to the applicant of other sources of representation. I can assure the Committee that I have these issues under active consideration.
Different considerations apply to tribunals dealing with social security appeals, whether the appeal tribunals or the proceedings before the social security commissioners, although I cannot claim any direct personal experience of these. Welfare tribunals investigate all questions relating to the appeal through an informal and inquisitorial hearing and are in sharp contrast to employment tribunals, which are adversarial. Oral evidence in these tribunals does not carry the same significance that it has in employment tribunals. Since 1996 appellants have had the opportunity in these tribunals to opt for either an oral or a paper hearing. The Department of Social Security's officials act as amici curiae, informing the tribunal of the relevant evidence, whether it assists the appellant or the department. Presenting officers receive training and guidance which stresses that they must not assume a defensive role or think in terms of winning cases. For these reasons, I see far less prospect that these cases could have a sufficient claim on a controlled budget.
I turn now to Amendment No. 102. The noble Lord, Lord Goodhart, called specific attention to discretionary lifer panels. He proposes an amendment to Schedule 2 to allow funding to be available under the community legal service for representation in proceedings before discretionary lifer panels.
I welcome the opportunity to assure the Committee that representation will continue to be made available under the new scheme. However, I cannot accept the amendment because I intend to make provision under the criminal defence service rather than under the community legal service.
Although these hearings are not strictly criminal proceedings, the expertise necessary to provide this type of representation is most likely to be found in those practitioners who will provide services as part of the criminal defence service. However, I can give an assurance to the noble Lord, Lord Goodhart, that, although there is no provision for representation at these proceedings on the face of the Bill, I intend to make regulations under Clause 12(3)(f) to enable prisoners to be represented before parole board panels dealing with "discretionary lifers" and offenders detained at Her Majesty's pleasure. Clause 14(2)(b) requires the legal services commission to fund representation in the circumstances there prescribed. On that basis, I invite the noble Lord not to press that amendment.
I turn to Amendments Nos. 101 and 103, which address immigration tribunals. I am grateful to my predecessor the noble and learned Lord, Lord Mackay of Clashfern, for fuelling my assumed irredentist ambitions and seeking to gain control over part of the Home Office budget. I shall certainly convey what the noble and learned Lord said to my right honourable friend the Home Secretary. I do not believe that the amendments are necessary in the area of immigration tribunals. The Home Secretary already makes grants under Section 23 of the Immigration Act 1971 to the Immigration Advisory Centre and the Refugee Legal Centre. They are two voluntary organisations who provide free advice, assistance and representation at these appeals.
The whole system of immigration and asylum appeals is a matter that is receiving the current attention of the Government. I have been working closely with my right honourable friend the Home Secretary on proposals to rationalise the whole system of immigration appeals. I have also asked the Legal Aid Board to report to me with proposals for contracting legally-aided immigration work. All of this means that currently we are addressing the effectiveness of the system from the standpoint of having good quality advice, assistance and representation where needed. On that basis I invite the noble Lord to withdraw the amendment.
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