Evidence submitted by the Council on Tribunals
(AIA 13A)
SUPPLEMENTARY MEMORANDUM
1. On 30 April 2003 the Council on Tribunals
submitted its main memorandum to the Committee (then the Committee
on the Lord Chancellor's Department). This supplementary memorandum
responds to the Committee's invitation to update the Council's
evidence with particular reference to provisions in the Asylum
and Immigration (Treatment of Claimants, etc) Bill 2003-04.
SINGLE TIER
TRIBUNAL
2. In responding to the short consultation
preceding the introduction of the Bill, the Council confined its
comments to the proposal for a single tier of appeal. The Council
pointed out that the proposal was inconsistent with the Leggatt
Report "Tribunals for Users" (2001) which recommended
a two tier system for tribunals generally. The Council expressed
concern that abolition of the second tier would jeopardise the
consistency and quality of decision making. The Council went on
to say that as much as possible should be done, within a single
tier system, to reduce the risks of inconsistency and poor decision
making, for example by way of training, monitoring and appraisal.
However, that would not avail an appellant who had the misfortune
to be a victim of a bad decision.
3. The Council adheres to these views. The
Council is particularly concerned about the provisions in clause
10 of the Bill excluding any scope for further challenge to the
decisions of the Tribunal, either by way of appeal to a higher
court (as is usual in the case of tribunals) or by judicial review.
It is of the highest constitutional importance that the lawfulness
of decisions of public authorities should be capable of being
tested in the courts. This has been recognised at least since
1958, when all existing statutory provisions purporting to oust
the courts' supervisory jurisdiction were deprived of that effect
by the Tribunals and Inquiries Act. In respect of tribunals under
its supervision, the Council has consistently advocated an avenue
of appeal to the courts on points of law. In the Council's view,
it is entirely wrong that decisions of tribunals should be immune
from further legal challenge. Such immunity must be detrimental
to the maintenance of judicial standards in tribunals.
4. The Council has considered the extent
to which the provisions in clause 10 for review of Tribunal decisions
by the Tribunal itself, and for reference of points of law by
the President of the Tribunal to the appellate court, provide
adequate protection against incorrect decisions. The Council believes
that they do not. The review provisions are very restrictive and
do not permit oral hearings. The Council considers that there
should at least be the possibility of oral submissions on a review.
So far as references to the appellate court are concerned, the
provisions are again very restrictive and, in the Council's view,
give too much responsibility for the development of the law to
a single individual, namely the President.
FURTHER RESTRICTION
OF RIGHTS
OF APPEAL
AGAINST REMOVAL
TO "SAFE
THIRD COUNTRIES"
5. The Council is concerned at the further
restriction of rights of appeal against removal to "safe
third countries" by clause 12 and Schedule 3. Although the
scope of rights of appeal raises issues of policy that fall outside
the Council's remit, in an area where the issues at stake are
so important for individuals the Council can only view with anxiety
the further erosion of rights to challenge executive decisions.
ADDITIONAL POWERS
TO REGULATE
IMMIGRATION ADVICE
6. In its earlier submission to the Committee
the Council indicated its support for measures to regulate immigration
advice. Although the Council would have welcomed clear evidence
that the additional powers in clauses 16 to 19 are really necessary,
the Council has no further comment on the provisions.
6 January 2004
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