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Mrs. Louise Ellman (Liverpool, Riverside) (Lab/Co-op): Is my hon. Friend concerned that the issue that we are now debating is fuelled by a hardening of public attitudes towards people whom they see as strangers? Is he concerned that in pursuing that course the interests of justice might well be lost?
Jeremy Corbyn: My hon. Friend makes a fair point. It seems to me that much of the policy surrounding asylum seekers is fuelled by the headlines in the Daily Mail and the Daily Express, and the comments of some Members of the House at various times. It is the duty of Members of Parliament to stand up for rights, justice and vulnerable minorities. If we must pay a political price for it, so be it, but we must stand up to maintain those principles and that strength.
In conclusion, the appeals system, far from being abused, is difficult to activate at present. One must get leave to appeal. According to the Home Office figures for last year, 4 per cent. of such appeals were successful. If this measure is passed, those appeals would be denied, which means that 2,900 people would be deported from this country who might have won an appeal. In the previous year, a much larger number won those appeals. It is up to the Government to explain exactly what they mean by this measure.
We passed the Human Rights Act 1998. We have signed up to all the UN conventions, and we signed up to the 1951 convention. We pride ourselves on being a place of safety and liberty, and yet we deny it to people. Daily, I meet asylum seekers living on nothing, scrounging to try to survive in our society, wanting to work, wanting to contribute, but who are in danger of being deported back to the horror from which they thought that they had escaped by coming to this country as a place of safety. They are an easy target for the racists, the British National party and the tabloid press. We should be able to do and say something better in the House to protect that right of appeal and that fundamental right of asylum. Surely, as elected representatives, we should carry out that duty tonight.
8.15 pm
Mr. Beith: The amendments under discussion bear on issues that were raised by the Constitutional Affairs Committee in our report published last week. We began studying the immigration and asylum appeals process last year—proposals that had not yet come into effect from the Nationality, Immigration and Asylum Act 2002. We rushed to produce further reports on the Government's restrictions on legal aid in asylum and immigration matters, and we rushed the report out to make sure that the House had the opportunity of seeing our recommendations on this Bill, to which a number of hon. Members have referred. That Act, which was the Government's declared means of speeding up the process of appeals, has had no time to be assessed. If a process is introduced with that as the avowed purpose, at least we should allow more than a few months to establish whether it achieves that purpose. It is impossible to assess within a few months whether it has done so. The Government have simply not taken the opportunity to evaluate their chosen method of speeding up the process.
In the course of that, we discovered that the initial decision-making process is so often faulty that to remove part of the appeals process, and certainly to remove the jurisdiction of higher courts, will be doubly dangerous, because there are obviously so many failings in the initial decision-making process. We went to India and Istanbul to look at the problems confronted there, we looked at many aspects in this country, and we received a wide range of evidence from both sides of the table—from Government, applicants and those who represent them, and from the judiciary, which was a source of real concern. One of the points that the Committee would want me to emphasise is that the measures under discussion tonight are not just about asylum but about immigration applicants of all kinds, including people seeking family reunions and people seeking family visits for weddings and funerals. Members will know of the extent to which they have had to become involved in trying to get people's cases dealt with in time for them to attend a funeral or wedding.
Mr. Bacon: The right hon. Gentleman said that it was not just about asylum but about visits and so on. Does he agree that it is not just about asylum, immigration or visits, but to quote the Matrix chambers brief, about whether there should be
- "a precedent for exempting the executive and administrative tribunals from seeking to understand, apply or be governed by the law"?
Mr. Beith: That is true, and it is a point that has been well made in all parts of the House. I must emphasise, however, the range of categories of people who are outside this country but who are subject to the same process because they are seeking admission to this country to visit members of their family, or to join members of their family, in a process of inward immigration, which must be regulated but in which they are entitled to a fair hearing and a proper appeal system.
Then we encountered the wide range of Home Office delays in processing appeals. It struck us that it should not be the Home Office that processes the appeal. It should not be the Home Office that receives the appeal and effectively decides when the tribunal can deal with it
by sitting on those papers for quite some time. In any other judicial process, it is surely not one of the parties to the argument that effectively makes the decision about when the tribunal can begin to consider the hearing of the matter. Appeals should go to the immigration appeal authority in the first instance and not to the Home Office.Then we were concerned about the non-appearance of presenting officers. It seemed to us extraordinary that in so many cases—30 or 40 per cent.—the Home Office should not be there to present the reasons why it objects to the appeal being granted. That places an unreasonable burden on the adjudicating body and underlines again the need to be able to refer the matter to a higher level, if that has happened. Indeed, it led us to ask the Government to consider whether the judicial person in that situation should do something that was not normal in English law—to adopt a more inquisitorial approach simply to ensure that all the facts are brought out, which cannot be the case when the adversarial system is not operating because one side is not present.
Then we had doubts and anxieties about the fairness of out-of-country appeals—non-suspensive appeals—and about the disparity between the success rate in paper appeals and in appeals taken orally, in which either the applicant or the family of the applicant were represented.
There is a clear disparity. It suggests that if people do not know that it is possible to undertake an oral appeal, or if there is no one who can attend an appeal on their behalf, they will benefit from a less good decision. That is another reason to allow the matter to go further.
When we asked the Minister in the Constitutional Affairs Committee about the ousting of the jurisdiction of the House of Lords, even in cases in which the tribunal president might want the Lords to consider a wider legal matter, he said that the Government were minded to allow the Lords at least a limited ability to define matters of law in an area in which their role had been so important in the past. So far, however, no amendment has been tabled to allow that.
Let me select the two general conclusions made in the Committee which I consider most relevant to our discussion. In paragraph 70, we say:
- "An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial oversight of lower Tribunals and executive decisions should be retained. This is particularly true when life and liberty may be at stake."
- "until there has been more experience of its impact."
Vera Baird: The House is full of grandiloquence tonight, but I have only five minutes; and although the
issues are large, it seems to be that the changes required are relatively small. What is required is an independent appeals system. That would restore the constitutional propriety; it would restore the rule of law; it would give coherence to the proposal, and make it compatible with the convention. At present there is no independent appeals process, and that is the trouble.There is nothing magical about judicial review. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) spoke of 260 decisions that had been judicially reviewed as if they had been successful appeals. What happens is that a decision is examined, and found to have been made in a reasonable or unlawful way. The case is then sent back to the adjudicator, who may make the same decision or may make a different one; but he will have to do it correctly the second time. I make no comment on how many of the 260 were true appeals and how many were not, and I entirely agree that one person wrongly sent back to torture because of the lack of a proper appeal is too many; but I think that that makes the clear point that judicial review is not necessarily the appeal process of choice for decisions that need to be not only right and accurate, but speedy.
Judicial review is not such a marvel. It was ousted by an Act of Parliament very recently, and replaced by a statutory review, or independent appeals system—perfectly unexceptionably, it seems. Moreover, although many speakers have decried the ousting of judicial review in criminal cases, there has been no entitlement to it—except in relation to very peripheral matters—since the century before last. It is not a key part of our constitution.
It is imperative, however, that the clause refer to an independent appellate process. I said the same on Second Reading, and my right hon. Friend the Minister for Citizenship and Immigration said that the Government felt that the clause did refer to such a process. That is a review, on paper, by a colleague of the adjudicator, of the same seniority, who has been to the same classes and read the same books, and been taught by the same lecturers. The appeal principle is that there should be a proper review by a senior judge, better qualified and more experienced, who can truly review.
As the clause stands, we are talking about passing the appeal to the chap on the next desk—a member of the same team. That is a curious notion of independence. What is required is the input of some senior judges. My suggestion is a small one: scrap peer review as a means of appeal, and bring into the single-tier new court a separate level of appellate judges, not at adjudicator level—which is district judge level, and quite low—but at the very least from the circuit bench, and probably from the High Court. They will be separately appointed, and they will not overlap. That is completely consistent with the usual manner of appeal in most courts in the land. In the unified criminal court that has just come into play, appeal is made from the magistrates court to the Crown court. They are quite separate, and the second is more senior than the first. From the county courts appeal is made to the Court of Appeal, and the second is senior to and independent of the first.
I thought that I heard the Minister talking on the radio this morning about the possibility of some such change. It is imperative, and it will be hugely difficult for me to support the clause if it is not made. The
Government are not just ousting judicial review; they are ousting all appeals and all application of the rule of law. I also think that that appeal level should be able to deal with oral hearings if it wishes. That too would be only a minor change, but it would mean no more delay in any applications; it would involve no more people—just different people. Indeed, it would involve no difficulty at all, yet it would rectify all that is currently wrong.I echo what was said by my hon. Friend the Member for Cannock Chase (Tony Wright). If these changes, or something like them, are to be introduced elsewhere, please let us not be driven through the Whips system to erode constitutional principles that we all hold dear when the Government intend to reverse them later.
I want to add a footnote, but an important one. I feel that in the interests of consistency and the continuing development of this branch of the law, what is currently a right for the tribunal president to refer a case to the Court of Appeal ought to become a right of appeal as well. In Committee, the Minister said that the president would almost certainly regard himself as bound by what the Court of Appeal came back to say. There is nothing now to stop the parties from writing to him and asking him to refer it to the Court of Appeal. We are only a small step away from allowing the parties to make a application for leave to appeal, with the president as the filter. After that, preferably, there should be a back-up procedure, with the Court of Appeal being allowed to second-guess him on a reviewed application.
As I said, there has been much grandiloquence. It suggests that the distance between clause 11 and the sound constitutional principles of which we are all fond is desert-wide and chasm-deep. In fact, only a short step is needed to upgrade the review judges to a better calibre, and to firm up into a proper structure the current ghost of an appeal to the Court of Appeal.
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