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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 issueswithout 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 personwe hope that such a person will never be appointedmight 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 examplebut 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 hadthis is an extreme
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.
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,
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 200001 to £174 million in 200203. 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.
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.