Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I speak to Amendments 55 to 59 which are in my name and that of other noble Lords. I recall when I first started as a lawyer there were some 400 to 500 certiorari applications every year. It was a very limited field but under the guidance of the noble and learned Lord, Lord Woolf, and others, the field of judicial review has expanded very considerably. However, there is a problem. Unmeritorious claims are undoubtedly brought before the court in immigration cases, which take up a great deal of time but are not ever going to get a full hearing in any event. Attempts have been made to curb this, and it is a provision now that only certified people can give immigration advice and representation. It is regulated so that only solicitors, barristers, legal executives and those in a scheme run by the Office of the Immigration Services Commissioner are permitted to give immigration advice and representation in the course of a business. A voluntary agency or charity cannot unless it complies with certain requirements of the Immigration Services Commissioner. Despite all that, these claims are still brought. Some 70 to 80 per cent of immigration judicial review applications are not brought with legal aid, because in order to get legal aid at all there is a merits test, which the particular application has to pass before a solicitor is entitled to take the case forward. The purpose of Amendment 55, which I have put forward, is to keep the scope of judicial review as it is under paragraph 17 but to remove the restrictions on immigration cases that are set out in sub-paragraphs (5) to (7). The immigration-specific exclusions that are now contained in that paragraph were not part of the original consultation. When the consultation was first put forward in November 2011, the Government said, quite robustly, that they regarded judicial review as a particular priority because: "““These proceedings … represent a crucial way of ensuring that state power is exercised responsibly””." In their response to the consultation, the Government said, in relation to unmeritorious judicial review applications, that: "““The current criteria governing the granting of legal aid in individual cases would generally preclude such funding””." So, on the one hand the Government are saying that they think judicial review is very important in making sure that the UK Border Agency acts properly, and on the other hand they are saying that the granting of legal aid will require the passing of the merits test, which will generally preclude such funding. That was their attitude then; however, when they produced the Bill, they excluded these cases, which they acknowledge are crucial to ensuring the responsible exercise of state power. I am looking to hear an explanation from the Minister of why, between the consultation and the publication of the Bill, it was thought necessary to exclude immigration cases in that way. Amendment 59 is intended to retain legal aid for an immigration judicial review where a previous appeal or judicial review has been successful or has not been brought with legal aid. Under the Bill, a previous appeal or judicial review proceedings will prevent or exclude legal aid for any subsequent immigration judicial review applications—whatever the merit of subsequent applications and whatever the result in the previous appeal or judicial review proceedings. Whether the earlier proceedings were successful, or whether the UK Border Agency has failed to act on the previous decision or it is flouting the decision, it is not possible to have legal aid to bring a second judicial review. The Bill will remove legal aid generally for all non-asylum immigration matters. This means that those unable to pay for legal advice and representation will in immigration cases not be able to obtain legal aid for advice about their immigration situation or representation in dealing with the UK Border Agency or any immigration appeal.The immigration-specific exclusions relating to judicial review effectively ensure that those affected cannot have any legal aid at any stage of the immigration process. As I have already said to your Lordships, immigration is a problem, and it is brought forward in unmeritorious cases, generally without legal aid backing it. But now not even in the meritorious cases will legal aid be granted. Amendment 56 has the purpose of retaining legal aid for an immigration judicial review when there has been no previous appeal. Sub-paragraph (6)(a) excludes legal aid for a subsequent judicial review of removal directions if a decision to remove has been made. The Government have suggested that any challenge to the earlier decision to remove can be dealt with on appeal, but a decision to remove does not of itself entitle a person to appeal before he or she has left or been removed from the United Kingdom. Therefore, on the Government’s own analysis, a decision to remove ought not to be a trigger for excluding legal aid for any judicial review application because it does not provide an opportunity for any oral hearing before a tribunal judge prior to the proposed removal. Amendment 57 deals with a defect in the Bill. Sub-paragraph (6)(b) refers to decisions to refuse leave to appeal at a stage where such decisions cannot be made at the point of appeal to the First-tier Tribunal. Appeals at this stage are brought as of right; there are no leave-to-appeal decisions, so sub-paragraph (6)(b) is defective and should be removed. Finally, Amendment 58 would align the preservation of legal aid for judicial review in connection with refusals of asylum with the scope of asylum as provided at paragraph 26(1) of the schedule. The Bill currently preserves legal aid in relation to fresh asylum applications but only in so far as the EU procedures directive applies. This is potentially problematic because that directive refers to an application for asylum as, "““a request for international protection … under the Geneva Convention””." Other EU directives and UK domestic law treat other applications as applications for protection where the refugee convention may not strictly apply but the level of harm, such as torture or execution, which the individual faces is no less. In 2010, the UK Border Agency made 3,488 initial decisions to grant asylum under the refugee convention, compared with 91 grants on non-refugee convention grounds. While the cases where the distinction is critical are few, the exclusive reference in the sub-paragraph to the EU procedures directive is likely to cause confusion and litigation. The directives should be read altogether as one body of law and the relevant protection in relation to fresh asylum applications should not be limited to refugee convention applications. The seriousness of the cases involved is indistinguishable. By aligning the provision in sub-paragraph (7) with paragraph 26(1), that distinction will be closed, and it would better meet the Government’s stated intention to prioritise asylum, to avoid the potentially complex and expensive litigation and avoid the bureaucracy that likely will be required to operate the exceptional cases scheme. Given that the affected cases are relatively few, there is little financially to be gained by the Government from retaining the distinction between cases brought under the convention and those not under the convention. As I said to the noble Lord, Lord McNally, we are here to help, and we believe that these amendments would improve the structure of the Bill.