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Lord Goodhart: My Lords, the member of the courts board who sits on the appointments panel would presumably be a person with local knowledge.
Lord Filkin: My Lords, that would often be the case, but perhaps not always, depending on how recently people had been appointed to the process. I will say no more on that for now, but I shall reflect on whether we need to go further in looking at those issues—without wishing to raise an expectation that we necessarily will.
It is essentially a balance. There is benefit in having a person with responsibility for that as part of the process. I hear the worry about whether a weak person—we hope that such a person will never be appointed—might be partial and not choose people of the talent and vigour to bring the most pressure. However, I should hope that the processes I have indicated will limit that relatively remote risk.
I turn to the issues raised by the noble Lord, Lord Phillips of Sudbury, the first of which was the identification of the qualities and experience of the courts boards members. As he said, the Lord Chancellor must publish the qualities and abilities, including the experience and qualifications, for courts boards members. Before doing so, he must consult an independent assessor. The question was whether the Lord Chancellor's ability to consult was confined to an assessor. The answer is "no"—which I think is the answer that the noble Lord had hoped for. It is not confined only to consulting an independent assessor. For example, we have consulted external bodies setting the criteria for the current exercise, such as the Association of Disabled Professionals and the Society of Occupational Lawyers.
I turn to the question of dismissal. In a sense, this is a power; it is not an obligation to rigorously enforce that. One could envisage a situation in which a person had been charged and had been convicted of a criminal offence— driving without due care and attention, for example—but it was not seen to be of such moment that it would necessarily undermine confidence in that position. I am not saying that this would mean that anybody so charged and convicted would in all circumstances continue, but it is a signal that there is a discretion for the Lord Chancellor, if he thinks it appropriate, to remove a person in such circumstances. You could perhaps go to the other extreme, where a person had—this is an extreme
circumstance—been charged with murder, for example, and had been acquitted on a technicality. In that circumstance, one would wish the Lord Chancellor to have the power to remove. Because, clearly, having a person in such a situation might go to an issue of public confidence in his fulfilling a function which is essentially supervising the administration of justice.I do not wish to speculate in detail. In short, it is a discretionary power that is with the Lord Chancellor for good reasons. Of course, there is an obligation on the person to make sure that natural justice is done to him, as well as upholding confidence in the process of the law and the functions that the courts board is intended to do.
There is no appeal of removal, as such. The powers expressed are discretionary, and the Lord Chancellor will be required to act fairly and reasonably under the ordinary principles of public law.
I trust there is nothing else that the noble Lord, Lord Phillips, raised that I have omitted. I am sure he will remind me if that is so. I hope that this has addressed the issues concerned.
On Question, Motion agreed to.
Courts Boards (Appointments and Procedure) Regulations 2004
8.37 p.m.
Lord Filkin: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft regulations laid before the House on 26 February be approved [11th Report from the Joint Committee].—(Lord Filkin.)
On Question, Motion agreed to.
Community Legal Services (Scope) Regulations 2004
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"
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".
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".
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.)
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