As we indicated in Committee in the Commons, we think that the provisions in these two clauses are unnecessary and should be removed from the Bill. The Bill requires the Tribunal Procedure Committee to give the tribunal the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person for “improper, unreasonable or negligent” behaviour. There are also issues about wasted costs. That kind of formulation could certainly have a somewhat chilling effect on the willingness of solicitors to take on difficult cases for fear of risking personal financial liability. I suppose that it might also extend to Home Office presenting officers, who would be similarly liable under the measure, but no doubt someone would pay any fine or penalty that they got so no need to worry as far as they are concerned.
As far as we are concerned, the immigration tribunals already have all the case management costs and referral powers that they need to control their own procedure. Giving new powers to immigration tribunals without
establishing a basis in evidence for them is surely not warranted. The clauses will therefore make it harder for lawyers acting for people with immigration cases to do their job in immigration hearings. Surely all lawyers have a responsibility to uphold the rule of law and they are strictly regulated by several bodies to ensure that they act to the highest professional standard.
Frankly, and I think that this relates to the point that my noble friend Lady Chakrabarti was making, in acting for people subject to immigration control, among other things, immigration lawyers work with clients who may lack funds and legal aid entitlements, whose documents may be incomplete, missing or badly translated and whose statements as to their past experiences may be hard to secure on account of the ill treatment that they have suffered in their country of origin.
We share the concerns of the Immigration Law Practitioners’ Association and the Law Society that immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law. Surely it is a well-established fact that access to justice includes equal protection under the law. That principle admits of no distinction between British nationals and foreign nationals, and those who are subject to UK law are entitled to its protection. Clearly this is aimed—put bluntly—at foreign nationals.
I am not sure that the Government have particularly argued their case. I have not really heard the evidence adduced to support the proposition being made or indeed to demonstrate that existing case management powers, wasted costs powers or the powers to refer to the regulator are inadequate to deal with such matters. Frankly, there must be a feeling that this is a proposal from a Home Office that does not like to see so many of its decisions overturned and wants to create the image that somehow it is due to foul play on the part of immigration lawyers, and not to a degree of incompetence from the Home Office in dealing with cases in the first place, that so many get overturned or that proceedings are taken at a fairly late stage in the process. If the Government are to deny that this is the case, it would be helpful if they could set out why and what their evidence or reason is for needing these powers, when surely those powers already exist as far as the tribunals are concerned.
The other point is that the measures could create the risk of a conflict of interest, because solicitors could find that doing the right thing for their client or following their client’s instruction puts them at risk of having to pay a financial penalty if somebody decides that that is acting in an unreasonable way. One might have thought that alarm bells would be ringing in the Home Office at the idea of putting in place a procedure that will, as I said, apply only to lawyers operating on behalf of non-nationals. As was said quite clearly in Committee in the Commons, a lawyer
“could go along to the immigration tribunal and do something”
that they
“might do without facing consequences in the social security tribunal, employment tribunal, tax tribunal or any other tribunal”.
It looks as though some special provisions are being made in the case of immigration tribunals that could
lead to some sort of financial penalty having to be paid and that do not appear to apply in other tribunals. No doubt the Minister will want to comment on that.
If we really want to know a reason for the Government’s decision, I think that it came from the reply received in Committee in the Commons. The Minister said:
“Costs orders are rarely made and are generally considered only at the request of the other party. To encourage more use of those existing powers, clause 63”—
as it was at that stage—
“provides a duty on the tribunal procedure committee to introduce tribunal procedure rules in the immigration and asylum chamber, which will lead judges to more regularly consider making a wasted costs order or an unreasonable costs order, or the new tribunal costs order introduced by clause 62”—
as it was then. He went on:
“That will ensure that circumstances and behaviours that have warranted the making of costs orders previously will more often give rise to judicial attention.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; cols. 575-76.]
There does not appear to be much of an argument that the existing powers are not there; it is just that the Home Office has decided that the judiciary is not using them sufficiently often to its liking, so it is bringing in these two clauses. This could lead to some of the consequences I have already mentioned. They clearly apply only to immigration tribunals and not other tribunals, and only to foreign nationals and not British nationals, even though there is meant to be equality for those being dealt with under UK law. I do not say it with any hope, but ask anyway that the Government think carefully about the road they are going down with these two clauses.