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Mr. Dominic Grieve (Beaconsfield) (Con): The hon. and learned Member for Medway (Mr. Marshall-Andrews) said that it was a principle underpinning the Labour party and the Labour movement that people in this country should not be treated differently according
to whether they are citizens or not. That is a principle to which I too, as a Conservative, have no difficulty in adhering. That all in this country should be subject to the rule of law, and have the protection of the law, is a fundamental right, and fundamentally underpins the ethos and the ethics on which this country was built and developed.In clause 11 the Government propose to do something unprecedented. Not even in the darkest days of the second world war, when aliens were being interned, and were subject to administrative procedures to bring that about, was the supervision of the higher courts removed from the process to prevent wrongs from being righted if necessary, and rights from being preserved. Yet that is what the Government propose to do.
The only justification being suggested is that the administrative procedures that the Government seek to substitute will provide adequate protection. I accept that the Government face a problem with the appeals system. It is obvious that it needs to be streamlined to make it more efficient. I also accept that the system has been abused by a minority of unscrupulous lawyers, who take the view that by spinning out the proceedings in undeserving cases they can delay the inevitable, and even that the inevitable may therefore not happen, because the Government will lose the will to implement the decision and deport the person whose asylum application has failed.
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However, we must not lose sight of the fact that many of the delays in the asylum system have nothing to do with the courts, but stem from the Government's administrative failure to cope with the numbers of asylum seekers. We know that 20 per cent. of decisions made by the Home Office executive officers are not made within the two-month period prescribed. Is that surprising, when we consider their lowly status, the fact that they start on a salary of £15,000 per annum, and that they are regarded as wholly qualified to do their work after 27 days? It may not be surprising, either, in those circumstances, to note that many of their decisions turn out to be wrong.
The Minister may care to comment on this, but I understand that the Home Office presenting officers attend only about 60 per cent. of adjudication hearings. Is it surprising, therefore, that the adjudicators often overturn decisions? As the hon. Member for Winchester (Mr. Oaten) rightly said, the system leading up to the tribunal stage is not only slow, but is entirely in the hands of the Government who run it. There is no point in the Government complaining about the system; it is their system.
In my view, underlying the Government's proposal are complaints about the attitudes of the judiciary. The truth is that the Government do not like the judiciary. They do not like its independence or its attitudes. When Lord Falconer was appointed Secretary of State for Constitutional Affairs, why did the Home Secretary say to him, in an aside that was perfectly visible on television, "Now at last we will get the judges we want"? That is the reality of the Home Secretary's hostility to the judiciary and to the independence of its decision making.
Furthermore, there is not much point in the Government complaining about the judiciary's decisions in asylum cases, when most of those decisions have been founded on the Human Rights Act 1998, which the Government themselves chose to incorporate in our law.
In 1999, exceptional leave to remain was granted in only 2,465 cases; in 2002, there were 20,135 such cases. That was because the introduction of the Human Rights Act brought a whole new range of considerations to the way in which asylum cases had to be considered, leading to a completely different set of results. I do not imagine that the Minister wishes to criticise the judiciary for having been instrumental in helping that process along. If he does, I simply say to him that the Government should not have incorporated those rights in our law. It was his Government who chose to do that. There is no point in blaming the judges for interpreting the law, when Parliament asks them to do just that.
Mr. Garnier: The Government have at last got round the inadequacy of their own legislation by cynically placing in this Bill subsection (5) of proposed new section 108A of the Nationality, Immigration and Asylum Act 2002, which disapplies the Human Rights Act from the decisions of the tribunal. Not only did they cynically introduce the Act to British law so that they could say, "We're bringing rights home," but when judges apply the legislation that they so joyously put on our statute book, they disapply it, for the very reasons that my hon. Friend has mentioned.
Mr. Grieve: I entirely agree with my hon. and learned Friend—yet I understand that the Home Secretary has certified that he believes the Bill to be compatible with the Human Rights Act. The Government's approach is a complete mystery. Indeed, I have to say—and my hon. and learned Friend may well agree with me—that the provision will drive a cart and horses through the Government's attempts to make this ouster clause work. One of the things that I intended to say to the Minister was that I do not think that the ouster clause as drafted stands a hope in heaven of surviving judicial scrutiny. It will probably lead to a major confrontation between the judiciary and the Executive.
It will not lead to the streamlined procedure that the Government want.
I said that the Government do not want the judges to rule, yet the proposal is entirely a product of their Marxist past—[Interruption.] Yes, it is. The more I watch this Government and see that, having abandoned any hint of Marxism in economics, they long for centralised bureaucratic solutions to the problems that confront the country, the more convinced I become that they wake up in the middle of the night believing that those bureaucratic solutions can change the world for the better. I, however, do not believe that.
I have some suggestions that will allow the Government to solve their problem. We have tabled a series of amendments—amendments Nos. 93, 92, 94, 96, 22, and new clause 8. If they were accepted, they would provide a framework by which it would be possible for the Government to achieve their aim of streamlining the legislation while keeping it compatible with the Human Rights Act and, indeed, making it work properly.
Amendment No. 93 respects the idea that the tribunal and the adjudicator should be collapsed into one, to speed up the process. If that is what the Government want to do, so be it. Much will depend on the quality of the tribunal, to which I shall return in a moment. In addition, we would remove what is frankly the completely ludicrous notion that the tribunal can review its own decisions. It is sometimes possible to go back to a judge under the slip rule to ask him to review his judgment or order, but it is extraordinary that the Government consider it acceptable that the mechanism of appeal with which they are going to justify the Bill as Human Rights Act-compatible is to ask a tribunal that has just made a wrong decision to review it. That is nonsense. As soon as the Minister and the Government understand that, we can start to put the legislation into a sensible shape.
We propose establishing a statutory appeal procedure to a High Court judge. It would be streamlined, with seven days to appeal, which would be possible without causing injustice. The appeal would usually be dealt with on paper, but with the possibility of the judge calling the case in for oral hearing if necessary. The judge would either affirm or alter the decision, or remit it back to the tribunal if further hearings of fact were required. That sensible approach respects the fact that the higher judiciary should have an input into the process. It would also ensure that the appeal is not conducted by the same people who heard the original case.
Mr. Richard Bacon (South Norfolk) (Con): As my hon. Friend has not departed too far from the subject to human rights compatibility, will he invite the Minister to confirm whether the Government still assert that the Bill is human rights-compatible? The old version of the Bill clearly sets out on page 1 the certificate to which he referred. It says that Mr. Secretary Blunkett has asserted that the provisions
- "are compatible with the Convention rights",
Mr. Grieve: My hon. Friend makes a good point. If the Bill as printed, after its passage through Committee, is no longer Human Rights Act-compatible, the Minister should have told us that from the outset. I take it that in the absence of that statement, he still considers it compatible. My hon. Friend is right, however, that it no longer features in the Bill. I suppose, therefore, that the Government are proposing legislation that is not so compatible with the Human Rights Act. I will give way to the Minister if he wishes to say whether it is a printer's error or the Government's new view of the Bill.
Mr. Grieve: The Minister does not want to intervene, so we are left with our quiet speculation.
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