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Mr. John Gummer (Suffolk, Coastal) (Con): As the Minister is not prepared to respond, does my hon. Friend agree that if the Human Rights Act is important in a case, it is precisely a case in which a country deals with foreigners, because that is when many countries
have double standards? It happens to be true in Britain that we have not had double standards. The Bill is the first time we have had those double standards, which came into being the very moment the Government ditched their Human Rights Act, which brought the convention on human rights into our law.
Mr. Grieve: My right hon. Friend is right. It is also right that we should call a spade a spade and consider people's views with care. Many people—perfectly reasonable people—would often apply different criteria to foreigners and nationals. It is precisely for that reason that the protection of the law is so important. It is because emotions often drive people in an opposite direction that a system of law is constructed to ensure that mischief does not result from it. That is what is so unpleasant about what the Government want to do. The hon. Member for Hackney, North and Stoke Newington (Ms Abbott) was right: if the Government can do that for this measure, what next? The comment on the second world war—
- "First they came for the Jews"
Peter Bottomley: I am grateful to my hon. Friend and my hon. and learned Friend the Member for Harborough (Mr. Garnier) for their contributions, because subsection (5) of proposed new section 108A relates to anything that a tribunal may have done in which there is a
- "lack of jurisdiction . . . irregularity . . . error of law . . . breach of natural justice, or . . . any other matter".
Mr. Grieve: My hon. Friend makes a good point. Again, I wait to hear how the Minister intends to deal with that.
David Winnick (Walsall, North) (Lab): Will the hon. Gentleman give way?
Mr. Grieve: If I could make some progress—other hon. Members wish to participate.
On the other provisions in amendment No. 93, once the review has taken place in front of the single judge, there should be a mechanism to appeal on a point of law to the Court of Appeal. We have again tried to streamline that by introducing the period of seven days. The appeal has to be done with the leave of a single judge or the leave of the Court of Appeal. From there, it can go to the House of Lords in the ordinary way if there is a point of law of general public importance. How would that procedure hold things up?
I suspect that the mechanism of going to the single judge will be just as quick as asking the tribunal to review its own decision, by the time it has been weighed down with dozens of such applications. We know that the Court of Appeal heard only five asylum cases in the year from 1 October 2002 to 30 September 2003, and only four asylum cases were heard by the House of Lords. Admittedly, there were many more in the previous year, but that reflected the fact that the adjudicators and the tribunal were getting their decisions consistently wrong. I need the Minister to justify his proposal if he is to persuade me that allowing an appeal to the Court of Appeal and the House of Lords would put a spanner in the works, especially as we propose a streamlined procedure to facilitate the process.
On the Human Rights Act exclusions and the question of removal, I shall return to a point that I made earlier, which bears repeating: if the Government persist with clause 11, the judiciary will undoubtedly find every conceivable device to get round its provisions. Having examined it, I can think of a number of ways in which that might be done.
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The Minister may care to reflect on the point that if the procedures are irregular and flawed, it might be argued that there are no procedures. If there are no procedures, an application for habeas corpus will be entertained by the courts when somebody is about to be taken away in a van and put on a plane, and the mud will be all over the Government's face. The Government are being unreasonable and should accept our offer of a helping hand rather than persisting with a ludicrous policy.
Amendment No. 22 deals with schedule 2, which is very worrying and is linked to clause 11. Schedule 2 provides for the supervision of judges by other members of the judiciary. I am not sure whether I understand what that means, but I have always understood that every judge is independent once they have been appointed. A judge may, of course, consult colleagues or discuss matters with them over dinner, but his decisions are ultimately independent.
Explaining that point in Committee, the Minister said:
- "We propose that senior members of the judiciary will be responsible for supporting a group of approximately 10 immigration judges. The senior judiciary will play a role in communicating information and case law and will be available if the immigration judge wishes to discuss any issue. They will play a role in ensuring that the judges receive appropriate training and mentoring, should they need it. That is consistent with judicial independence and is essential to allow asylum and immigration tribunals to function effectively."—[Official Report, Standing Committee B, 20 January 2004; c. 317.]
It would be sensible to accept amendment No. 22, which would resolve the problem by changing the wording and removing the mischief. I do not mind if judges want to consult each other, but I object to the setting up of a parallel legal system based on new
principles designed to achieve an administrative end. Before 1997, people said that the Prime Minister thought that Britain was too feudal and that he wanted to make it Napoleonic, but we are getting Napoleonic with knobs on—an administrative system that is alien to this country, which does not refer to our historic freedoms and which completely undermines judicial independence.Finally, I commend new clause 8 to the House; the Government should adopt it if they want to speed up the system. If the Government succeed in mastering the asylum system—there are some signs that they have made recent improvements—new clause 8 sets out a timetable for the Secretary of State. It states:
- "Initial decisions . . . shall be made and notified to the applicant within six weeks of the application being made. Notice of appeal . . . must be lodged with the Tribunal within 14 days of the decision appealed against . . . Within 14 days of receipt of the notice of appeal the Tribunal shall hold a direction hearing".
Justice delayed is justice denied—the saying is old and, perhaps, trite, but it is true. If the Minister wants the official Opposition's help in speeding up justice, we will do what we can to help him and to cure abuses. If, however, the Government seek to undermine the principle of an independent judiciary, which is what clause 11 does, he should not be surprised when we resist him.
Tony Wright (Cannock Chase) (Lab): I shall be brief and have one point only to make. I have supported almost everything that the Government have tried to do to sort out the asylum system—it needed sorting out, and they have rightly set about the task with some vigour. I am also happy to join in the occasional jibe against lawyers—the jibes are good fun and always contain a grain of substance. However, there comes a point at which all of us who are not lawyers but who care about how the system works must ask ourselves whether we are being asked to go a step too far.
I have examined what the Constitutional Affairs Committee told the House and what the Joint Committee on Human Rights told both Houses—their use of language is not restrained; it could hardly be more vigorous—in drawing our attention to the importance of the Government's proposal. We have always adopted the principle that higher courts review the actions of tribunals in this country. That keeps the tribunal system on course and enables us to run it, because we know that it can be disciplined by the purview of a higher court, which is a constituent of what we have become used to describing as "the rule of law".
When the Government ask us to dispense with the rule of law by collapsing the appellate system into a single appeal body and by removing the appeal system from the purview of the higher courts, we are entitled to ask, "Why are you doing that?" As it happens, I am not one of those who simply say, "If it can be shown to be a constitutional precedent, I shall be against it." I favour breaking with all kinds of constitutional precedents on all kinds of fronts—I can give the Government a little list, if they would like one. However, I am not prepared to sign up to the removal of an appeal layer unless overwhelming justification can be given.
Authoritative Committees of this House have explored the question whether the Government have an overwhelming case, and they have found that the Government do not have one. That places an onus on all Members of Parliament who broadly support the direction in which the Government want to travel to say, "Hang on a minute. Be sure that you are not asking the House to do something disproportionate. Be sure that the measure does not help to undermine the rule of law on this front, and potentially on a wider front too, just for Executive convenience." It is not always easy to tease out whether points of principle underpin the matters that we discuss because we have a habit of trying to make everything into a fundamental point of principle in order to sustain our case, but there are moments when such principles are clearly at stake, and clause 11 raises one such principle.
We know that the measure will never be accepted by the other place, and the Government have presumably factored that into their thinking. As I see it, there is no way that legislation this fundamental will be accepted by the other place, so the Bill will presumably return to this House in a form that the Government think that they can get through, which will involve its amendment. The appeal system that we end up with will presumably be more streamlined than the current system, but it will be something other than the Government's current proposal.
That may seem to many people to be a perfectly satisfactory outcome—indeed, that is how we do things.
From the point of view of the House, however, that is not an acceptable way to proceed. The Government should not ask the House to agree something that raises fundamental points of constitutional importance, on the assumption that what will eventually be agreed will be something other than the original proposal. That is profoundly damaging for the House and for the reputation of our system. If for no other reason, I ask the Government to think again about the clause.
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