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Standing Committee B
Tuesday 20 January 2004
[Mrs. Marion Roe in the Chair]
[Continuation from column 288]
Mr. Bacon: Page 2 of the briefing describes the Bill as follows:
''In effect what has been billed as a measure to speed up immigration decision making is a barely disguised attack on the function and jurisdiction of the judiciary at a time when that function and jurisdiction is needed as never before'',
and over the page:
''Whatever the substantive law is there needs to be access to a court to ensure that it is being complied with.''
There needs to be access to a court to ensure that it is being complied with. Either we believe that the courts should uphold Acts of Parliament and the rule of law, or we do not. But if they are to uphold the rule of law it is essential that whatever the law is, people should have access to the courts in order to uphold it. The Matrix brief continues:
''It is this principle''
the principle of access to the court to ensure that the law is being complied with
''that is threatened by the ouster clause.''
My hon. Friend referred to the list of extraordinary eventsthe lack of jurisdiction, irregularity, error of law, breach of natural justice and so onthat the Bill would oust. Notwithstanding those matters, there would be no power of the court to look at the case to review the decision.
There is a very good brief from the Refugee Council, Amnesty International and the Refugee Legal Centre and I strongly support its conclusion:
''The attempt to prevent judicial oversight is of major constitutional significance and seeks to put the decision-making process beyond the law.''
I cannot easily add to that, save to say that if members of the Committee were to think that only what I would describe as right-on lawyers come to that conclusion, I refer them to the opinion of the Law Society, a sober group of people, who came to the conclusion that the Bill would mean that
''if a tribunal, in determining an application, made an error of law or failed to give proper consideration to relevant facts, the only redress would be to ask the tribunal to review its decision. This review would only be through written submissions. No matter how erroneous the decision, the applicant would have no means of challenging the tribunal's ruling.''
I have sat in on tribunals, although not immigration tribunals, covering issues such as the disability living allowance, and on behalf of some of my constituents I am extremely glad that the ability to review tribunals' decisions exists. Despite what some hon. Members
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think, I have no doubt that while many tribunal presidents and chairman are not judges, their decisions are capable of being seriously wrong. They are capable of ignoring basic facts and the rules of natural justice and it is right that those bodies should be reviewable. The Law Society concludes:
''Clause 10 goes far beyond what is reasonable. The ability of the judiciary to oversee the actions of administrative tribunals is fundamental to the rule of law. This proposal to oust the jurisdiction of the High Court is unprecedented. Bearing in mind that decisions on claims for asylum can literally be life or death matters . . .''
I refer the Committee to the earlier speech of my hon. and learned Friend the Member for Harborough. It is especially reprehensible that the Government should seek to eliminate proper judicial scrutiny of decisions in these cases.
I referred to the opinion of Mr. Ian Miller, the litigation partner at Wright Son and Pepper, a firm of lawyers in Gray's Inn. I say, for the benefit of the Committee and to avoid any appearance of not declaring my interest, that Mr. Miller used to be a flatmate of mine, although in the present climate
Mr. Garnier: He is not the Lord Chancellor, then.
Mr. Bacon: Not yet. Bearing in mind the Minister's boss, quoting a flatmate can only add to the weight of one's views.
Mr. Miller's opinion is this:
''I am sure that the Administrative Court judges are keen to get rid of unmeritorious immigration cases. Surely the sensible course is to have a special fast track admin court procedure on say immigration points of law where permission can be dealt with in a couple of days.''
It has been suggested that the answer is to reform the procedures, not completely to undermine the rule of law. In the absence of such reform, Mr. Miller adds that his instinct is that the current draft, which he describes as a declaration of war with the judiciary, will not stand and
''if there is a case where there is a clear injustice they will get around it as they did in Anisminic.''
My own view is that that is correct. In the end this action by the Government will not succeed, never mind what the other place may make of the provisions in the Bill. I fear that it will force judges to become ever more imaginative. It will undermine the rule of law. It will undermine the logic and the rationality of the law. Ultimately, it will fail. The Minister should note that the book to which he referred is called ''Administrative Law''. Surely the answer is to sort out the administration, not to drive a coach and horses through the law.
Mr. Turner: The immortal Flanders and Swann said, perhaps of Welsh rugby at the time when they used to win the triple crown,
''And they practise beforehand which ruins the fun!''
My hon. Friend has done the Committee a great service by researching before he speaks. He has dealt with a number of issues that go back into the realms of jurisprudential history but are of great value. I wish the Minister could have been as effective in justifying what he was saying.
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The hon. Member for Winchester criticised the Government's approach to the clause and, in particular, their anticipated approach to this group of amendments, as being an overreaction to tabloid headlines. I disagree. I believe that the Government's approach is an appropriately measured reaction to public concern. The difficulty is that they are aiming at the wrong target. For that reason I will support the amendments if called upon to do so.
Anyone who reads my speech on Second Reading will realise that I started sympathetic to the Government's concern about delays in the judicial and tribunal system and the sort of bouncing ball effect with which we are all familiar. Then I heard the figuresmy hon. Friend the Member for Woking quoted some of them earlier today and quoted others on previous occasionswhich show the relatively low number of cases that get to the higher courts.
Mr. McWalter: I accept that that might change the hon. Gentleman's view, but would he bear in mind that although few cases get to the European court or the Court of Appeal, that prospect is one of the things that keeps these cases going, so that people wait years without decisions being made?
Mr. Turner: I accept that and I shall shortly come to my amendments, which are probing amendments.
I came to the perhaps unworthy conclusion that the Government have put the clause into the Bill in the expectation that there would be a great row about it in the House of Lords and it would eventually be overturned and become one of those clauses that bounces back and forth between the Lords and the Commons. That would allow that great lawyer, the Prime Minister, to mock full-bottomed wigs, people in tights and so on, instead of dealing with the serious business of the legislation.
I thought that that was why the clause was included, then I heard the Minister, and it sounds as though he genuinely believes that it is because of legal impediments that the Government are failing to deal effectively with what people believe are uncontrollednot uncontrollableasylum applications in this country. I suspect that that is just a symptom of the Government. They belong to the Monty Python school of legislating according to myth rather than fact. It is a dishonest sort of politics: they erect a man of straw and then knock him down. They did so on Iraq and weapons of mass destruction, and they did so on fox hunting. The Prime Minister claimed that the House of Lords blocked the Bill, when in fact it had never been near the House of Lords. Now the Government seem to be doing the same with the asylum system. They blame their problems on the courts, even though very few cases get to the higher courts.
I accept the point made a moment ago by the hon. Member for Hemel Hempstead (Mr. McWalter). That said, I sympathise hugely with the frustration of the hon. Member for Glasgow, Cathcart and his hon. Friends. Some expressed their lack of sympathy with
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lawyers, whether Scottish or English, loudly, and some, such as the Parliamentary Private Secretary, the hon. Member for Brent, North (Mr. Gardiner), did so under their breath.
The feeling that lawyers are spinning out the process is certainly widespread. In many cases, they are not even qualified lawyers; they are unqualified immigration practitioners. That is not surprising. If we invite people to apply for lots of money, lots of people will join the queue. That is how the legal aid system appears to be working as far as lawyers and immigration practitioners are concerned. If the supposed beneficiary of that moneythe individual whose case they are taking uphas no direct control over the price, it is not surprising that they do not necessarily get good value for money. I hope that the hon. Member for Glasgow, Cathcart will join me if we reach amendment No. 124, which is designed to deal with the misuse of legal aid.
I conclude that the Government are dealing with the wrong problem. My hon. and learned Friend the Member for Harborough said that if we have a problem, we must do something to make the system more efficient. He gave excellent examples of how we could make it more efficient. I shall not repeat them: he is more knowledgeable than I am about ways in which the operation of the law could be improved.
My amendments Nos. 120 and 121 are modest and designed to probeI hope that the Minister deals with this explicitlywhether the definition of the word ''court'' in new section 108A includes tribunals such as the European Court of Justice and the European Court of Human Rights. If it does, and the legislation bans all appeals to those courts, the Minister will at least be consistent. If, however, as I suspect, the legislation does not prevent appeals to those courts, while preventing appeals to the Court of Appeal and the House of Lordsdomestic tribunalswe shall have the absurd situation of people appealing to the European Court of Human Rights on matters that they could have dealt with in the Court of Appeal, if only they had been allowed to appeal to it. The point made a moment ago will bear fruit, because those cases will take far longer than any case could take if it were dealt with in the Court of Appeal.
I shall give an example of one absurd case in the application of European law; it happened to one of my constituents and her son, who is a national of an African country. The mother is a British citizen. She was told that
''British citizens are European Economic Area nationals. However, European law relates to facilitating the free movement of European Economic Area nationals, and their family members, within the European Economic area. Therefore, were''
''and his mother to be residing in any of the other 14 member states, and were she to be exercising the European Treaty rights, in the form of employment or self-employment, or were she to have retired from economic activity, then''
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Mr. BI remind the Committee that he is a citizen of an African country
''could be availed by European law and could qualify for a right of residence in the member state in which his mother was residing. As a British citizen living in Britain his mother cannot be regarded as exercising Treaty rights in another member state, and therefore neither she, or by extension her son, can rely on these provisions''
The letter continues that Mr. B
''as someone over 21, would need to demonstrate that he was dependent on his mother. However, in European law, dependency for relatives in the ascending or descending line can be by choice.''
Mr. B is therefore being discriminated against in this country because his mother is British rather than Irish or Italian, French, German or a national of any other member state of the European economic area. If that is the consequence of importing European law into the operation of our immigration and asylum process, it is absurd. I hope that the Minister will confirm that appeals to European courts are outlawed under the clause.