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Annabelle Ewing: I seem to recall that the hon. and learned Gentleman alluded to his constituents' sorry tale in Committee. Is it not the case that Ecuador is whitelisted?

Mr. Garnier: Ecuador is an interesting place, but I shall not go into the evidence that was adduced in the two previous hearings and will no doubt be adduced again.

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In short, the Government have double standards. They claim to be the patron of human rights, yet are prepared to abuse future asylum seekers' human rights under clause 11. They have demonstrated their lack of good faith, I submit, in their handling of the Viteri asylum application. I have said enough to make the points that I wish to make, and have burdened the House with my remarks for too long. I trust that hon. Members who have listened to others apart from me realise that the Government have some good intentions, but in relation to clause 11 they have completely and utterly lost all connection with humanity and justice.

Ms Abbott : I am glad to be able to speak in support of proper appeal rights for asylum seekers and of the amendment to delete clause 11.

Two important parliamentary Committees examined the proposals on the appeal system and reached conclusions that are not favourable to the Government. Opposition to clause 11 rests on issues of principle and of practice. In the first instance, there is a clear objection in principle to any tribunal exercising a supervisory jurisdiction over itself, yet that is the set-up for which the Government are asking us to vote tonight. As colleagues have said, the Government can get away with that only because asylum seekers are involved. If clause 11 is passed unchallenged tonight, we will set a precedent that, for administrative convenience, could be applied to various Executive and administrative tribunals seeking to do away with a proper system of appeal.

Underlying clause 11 is the Government's concern about delay in dealing with asylum seekers and a range of immigration cases. I have great sympathy with their impatience. I have been a Member of Parliament for 17 years in a corner of north-east London that is home to asylum seekers and economic migrants from all parts of the globe and have dealt with thousands of cases. Some things change—every time there is a war or disturbance in a far corner of the globe there is a change in the pattern of asylum seekers and economic migrants who present themselves in Hackney. Ten years ago, we saw people displaced from the former Yugoslavia, but since then we have seen Kurds and people from the horn of Africa.

Demographic trends change, but other things remain the same. During my time as a Member of Parliament the administration system has been consistently poor, and delays have continued. The Government are right to focus on delay, but they are wrong to identify appeal rights as the most important cause of delay. If the Government introduced a programme of legal and administrative change to deal with delay at all levels, I would be the first to support them. Week after week in my advice sessions, I try to advise and help people who have waited years for a response from the Home Office. People who have had hearings in their favour are still waiting months to get the paperwork that will allow them to work and get on with their lives. Nobody feels more strongly about delays in dealing with asylum and immigration cases than the MPs who have to deal with those cases day in, day out.

If the Government are concerned about delay, before they tamper with appeal rights they should look at the causes of delay, the solution to which rests in their own hands.

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7.30 pm

I commend to the Government a recent report by Amnesty International on decision making in asylum cases that asked why some of the initial decisions were so poor. Amnesty considered 170 cases and came up with three main reasons, the first of which is the lack of accurate information on the human rights situations in some countries. I have often seen Foreign Office human rights assessments that bear no relation to what I or anyone who knows the country concerned knows about what is going on there—or perhaps the Government hear only what they want to hear. Secondly, there is a lack of objective consideration of the credibility of applicants. Finally, there is not enough proper consideration of torture and medical evidence.

Before the Government tamper with appeal rights, why will they not look at the quality of the initial decision making, because that in itself would speed up the system? It is no good saying that there are bound to be a few mistakes. We are not talking about a few mistakes. Any of my colleagues who deal with immigration and asylum day in, day out will say that the proportion of poor initial decisions is far too high.

Keith Vaz (Leicester, East) (Lab): My hon. Friend has sat through many debates on immigration Bills with me over the past 17 years, but does she not find it astonishing that the Government have proposed no package of measures to improve the operation of the Home Office? I am not saying that the proposals to remove the second tier of appeal would be acceptable if such measures had been introduced, but the Government have not even thought of a way of improving that first process before removing the right of appeal.

Ms Abbott: Of course my hon. Friend is right. If the Government had proposed a package of measures—legal measures or merely changes in process—to improve the initial decisions, the House would look more favourably upon their suggestions on the appeals process.

The Constitutional Affairs Committee, of which my hon. Friend is a member, said:

"The new proposals do too little to address the failings at the initial decision-making level and the low level Home Office representation at initial appeals."

Apparently, there is no Home Office attendance at up to 40 per cent. of cases. How can Ministers ask the House to set what might be a very damaging precedent in doing away with tribunal appeal rights, when they are not prepared to take the administrative steps to ensure that the Home Office is represented at all initial appeals?

The Home Affairs Committee said:

"The real flaw in the system appears to be at the stage of initial decision making, not that of appeal."

Of course layers of appeal are needed because of the poor overall standard of decision making at the very first tier, which is the only check and quality control. Worse, where people know that the quality of initial decision making is so poor, it is an incentive, but not the only one, for asylum seekers to play for time. We could with more confidence defend a speeded-up system if we had more confidence in the initial decisions that it takes.

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The Constitutional Affairs Committee, which is not packed with dangerous radicals or even extremist Tories, said:

"We recommend that the removal of a formal tier of appeal should not be undertaken until it can be shown that there has been a significant improvement in initial decision making and the rise in the number of successful first tier appeals has been substantially reversed."

In other words, get the system right first. The Government should get the system working efficiently and fairly before tampering with fundamental rights of appeal.

I note with some sadness that no Labour Member has so far spoken to support clause 11. I do not believe that a single Labour Member will rise to support clause 11, and I hope that those in the other place will read the report of the debate in Hansard and realise that the proposal to do away with a tier of appeal rights has no support among Government Members. I hope that that will strengthen the Lords in doing what it has to do in relation to clause 11.

There is no doubt that the Government have made much important headway in trying to reorganise, streamline and make our asylum system more efficient. No one who has dealt with the system could fail to appreciate that the Government had a Herculean task; but, as has been said earlier this evening, in doing away with a whole tier of appeal rights, the Government are going a step too far. They need to knock out clause 11, and return to the House with a package of proposals to improve the appeals process altogether. It is with some regret that other hon. Members and I tell the Government that we cannot support clause 11. We will support the amendment to remove it, and we look to others in another House to reinforce our view.

Mr. Bacon : It is a pleasure to follow the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) in the debate. She referred to the fact that not a single Labour Member of Parliament had spoken in support of clause 11. I think that I am right in saying that not a single Member of Parliament has spoken in support of the clause. The Minister may find himself in the curious position of being the only Member of Parliament to speak in favour of clause 11 on Report, which speaks eloquently of its worth.

The reason hon. Members do not support clause 11 is very simple: it is a bedrock of our system that we do not have unreviewable, uncheckable powers. The hon. and learned Member for Medway (Mr. Marshall-Andrews) put that exceptionally succinctly and clearly in his speech. The lack of such power is the basis on which the Anglo-Saxon legal and political tradition is built, and the Government need to understand that.

I should like to raise a couple of issues with the Minister, the first of which relates to the Human Rights Act 1998, which has been alluded to. I should like him to make it very clear in replying to the debate whether the Government assert that the Bill is now compatible with that Act. My original copy of the Bill clearly stated that the Home Secretary

"has made the following statement under section 19(1)(a) of the Human Rights Act 1998:


In my view the provisions of the Asylum and Immigration (Treatment of Claimants, etc.) Bill are compatible with the Convention rights."

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If we pick a clean copy of the Bill off the Table now, it says no such thing; mysteriously, that certificate is no longer there. The Minister could do the House a service if he clarified that point. Following the Bill's consideration in Committee, do the Government say that the Human Rights Act no longer applies? If they think that it applies, why is it not stated on the face of the Bill? If they think that it does not apply, will they please say so and attempt to justify that?

The second point that I want to make relates to the interesting, not to say amazing, letter that we received from the Minister for Citizenship and Immigration. In relation to clause 11, it says that section 108A is intended

"to prevent a person using judicial review to re-open an appeal by challenging removal or deportation following an unsuccessful appeal. However—

unfortunately—

as drafted paragraph . . . could be interpreted as affecting an individual's right to challenge the lawfulness of their detention and the right to compensation following their unlawful detention as a result of action by IND or the Tribunal. This would place the UK in breach of . . . article 5 of the European Convention of Human Rights . . . The Government's position has always been that the measures being introduced by section 108A will not exclude judicial review".

Hence the new Government amendment. It continues by saying that the amendments

"will ensure that the restriction on access to the higher courts cannot be interpreted as extending to challenges to actions of IND, or actions of the Tribunal in breach of article 5"—

which will therefore—

"place beyond doubt that the provisions contained in section 108A do not prevent a person from challenging an executive decision in the higher courts."

If all that is clear, one wonders what all the fuss was about. But unfortunately, when one reads the Bill and examines the powers of the president, all remains unclear. Subsection (4) of proposed new section 108B states:

"The President may refer a point of law only if the proceedings in the course of which the point arises . . . have not been determined by the Tribunal".

Of course, it is entirely possible for someone who is affected by a decision to say during a tribunal hearing that the case before the tribunal was affected by a lack of jurisdiction or an irregularity, or by an error of law or a breach of natural justice. According to clause 11 as drafted, however, if the president of the tribunal says, "Well, actually, the case is not affected by lack of jurisdiction, irregularity, error of law or a breach of natural justice", he is then barred from referring the case to a higher court, unless—apropos the provision referred to by my hon. and learned Friend the Member for Harborough (Mr. Garnier)—the tribunal decides that it will review the decision on appeal, which it can do if it is satisfied that the decision would have been different but for a clear error of law. The president could be confronted with the possibility that there was a clear error of law and say, "No, there wasn't". But the Bill states elsewhere that he is barred from making a referral, so the two different parts of the Bill are contradictory.

The third issue that I want to raise has already been referred to, so I shall not dwell on it. Fundamentally, the problem is not a legal one but an administrative one,

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which is why I support amendment No. 93 and new clause 8, the purposes of which are to speed up administration of the appeals system. The answer to the problem is not to drive a coach and horses through the whole legal apparatus, or to undermine the bedrock on which our liberties have stood—which is that we do not have unreviewable or uncheckable power—but to speed up the administrative processes.

As the hon. Member for Cannock Chase (Tony Wright) said—he is no longer in his place—the House of Lords will not look kindly on the Bill; and, as the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) said, the fact that not a single Member has so far spoken in favour of clause 11 will give the Lords courage in resisting it and seeking to amend it. Although the hon. Member for Cannock Chase was right to say that the other place will not look kindly on clause 11 and probably seek heavily to review it, the judges themselves will not look kindly on it either. The history of the Executive's attempts to impose ouster clauses in this way suggests that if the judges see that an injustice will be done in a particular case unless they intervene, they will find a way to do so.

Ultimately, the Government will succeed simply in undermining the rationality and logic of the rule of law, because they will force the judiciary to become ever more creative and imaginative in finding a way round it. That cannot be in anybody's interests. In fact, the Law Commission has an obligation to simplify and clarify the law, which is what we should all seek to do, so that everyone can understand it. The solution to this problem is an administrative one. The Government should not seek to solve it by declaring war on the judiciary.

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