My Lords, I thank the three noble Lords who have taken part in this debate. I should note for the record that I do not see the opposers of Clauses 76 and 77 in the Chamber, but I will carry on.
The Government are committed to making the immigration and asylum system more efficient, while also maintaining fairness, ensuring access to justice and upholding the rule of law. Representatives and participants have a role in ensuring that appeals run smoothly so that justice is served. We are aware that there are concerns about the behaviour of some representatives in immigration proceedings which can waste judicial and tribunal resource, leading to delays in the tribunal process overall. We are seeking to strengthen the tribunal’s ability to tackle such conduct, in order to improve the efficient running of the immigration tribunals.
Costs orders are one of the mechanisms available to tribunals to encourage good conduct in proceedings. Currently, tribunals can make wasted and unreasonable costs orders which relate to the legal costs of the parties. However, these mechanisms are infrequently employed and generally considered only at the request of the other party. Clause 76 creates a new power for tribunals to order a party to pay an amount which represents a portion of the tribunal’s costs. I should stress and expand on the costs we are talking about. The value of costs orders to be applied to specific
behaviours will be calculated by the tribunal according to a defined schedule of typical costs to it, rather than being set at an arbitrary or punitive level. The tribunal will not seek to recoup all its costs relating to a particular case, just the portion which can be attributed as wasted due to the specified unreasonable behaviour.
This will allow the tribunal to make an order in relation to wasted tribunal resources in the same types of circumstances which would currently warrant a wasted or unreasonable costs order. An order can be made against “relevant participants”, which means legal and other representatives exercising rights of audience, and the Secretary of State, where they are a party and do not have legal representatives. The noble Baroness, Lady Hamwee, asked whether this might act as a deterrent and ensure that fewer representatives want to take on immigration work. We think it right that representatives should explain themselves if they are responsible for circumstances to be set out in the rules as warranting consideration of a costs order. However, where there is a reasonable explanation, no order would be expected; the tribunal continues to have full discretion as to whether to make the order. Therefore, these changes should not impact legal representatives who fulfil their duties to the court and remain committed to their work and ensuring justice for their client. I hope that also goes some way to answering the questions raised by the noble Baroness, Lady Chakrabarti.