I am writing with the response of the Council on Tribunals to the Department for Constitutional Affairs Consultation Paper: Asylum and Immigration Tribunal The Legal Aid Arrangements for Onward Appeals.
Council members were grateful for the opportunity to discuss these proposals at the various consultation events presented by the DCA. Members of the Council or its secretariat were present at the events in London, Edinburgh and Manchester.
The Council's comments do not deal with every aspect of the consultation but are instead confined to two general areas. First, retrospective granting of legal aid. Secondly, the two options proposed for the 'prospects of success' test for legal aid funding outlined in the paper.
The Council recognises that the provisions relating to the retrospective granting of legal aid are already contained in legislation, under section 26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. However, the relevant provision (section 103D) was only introduced to the original Bill at a late stage, with little opportunity for external commentators to make representations about it. Although the Council recognises that the proposals in the consultation paper are intended to give effect to the wishes of Parliament (Question 3), the Council nevertheless wishes to take this opportunity to register its strong disapproval of section 103D. The Council considers such a provision to be fundamentally unfair. It could have the practical effect of precluding review of the Tribunals' decision in a significant number of meritorious cases.
The Council does not consider either of the two options proposed in the paper to be satisfactory. The Council considers that, despite the assertion to the contrary in the consultation paper, both options come close to creating a "no win, no fee" arrangement for the payment of legal aid fees, with unsuccessful cases likely to be funded only on an exceptional basis. The Council notes that even for established legal aid practitioners it may often prove difficult to judge the full strength of their clients' case before it is finally determined. This viewpoint was supported at the consultation events that Council members attended. The Council has major concerns that, under these proposals, an appellant's prospective legal adviser is, in effect, sitting in judgment on a case. The Council considers this to be wrong in principle. Consequently the Council strongly dislikes both options. The proposals will deprive the great majority of appellants who do not have independent means of the benefits of prior funding for a review and reconsideration. The Council considers that neither of these options is satisfactory, but of the two, Option 1 would be less objectionable than Option 2. The Council does so, on the basis that Option 1 requires a less subjective standard to be met in order for the supplier to be successful in his application for retrospective funding.