Examination of Witnesses (Questions 200-219)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
28 FEBRUARY 2006
Q200 Mr Tyrie: What about the definition
of the likelihood of torture, that is, whether or not someone
may be tortured? The UK Government talks about a substantial risk
of torture or a real risk of torture, whereas the American Administration,
when asked about this, provides a different definition. Are you
aware of that distinction?
Lord Falconer of Thoroton: You
have got to give some context to that question.
Q201 Mr Tyrie: When asked, the chief
legal adviser or a chief legal counsel, for example, to the US
State Department said that their definition of whether or not
there is a real risk someone is going to be tortured is that "it
is more likely than not" that they are going to be tortured,
therefore more than a 50% chance that they would be tortured.
If it is less than a 50% chance, they feel that they are not in
breach if they render someone.
Lord Falconer of Thoroton: That
is the Americans rendering somebody out of the United States of
America to another country.
Q202 Mr Tyrie: If I may say so, I
am a little bit worried that you are not fully aware of this debate
and the argument that is going on at the moment, which is of considerable
concern to international lawyers and indeed to all of those who
may be caught up in rendition. You are not aware of that debate?
Lord Falconer of Thoroton: You
are asking me questions about what is the burden of proof for
the risk of torture. What you are not saying is in what context
is one looking at whether or not the threshold has been passed.
Q203 Mr Tyrie: What do you mean by
"in what context"?
Lord Falconer of Thoroton: The
threshold that we normally look at is in the context of Article
3 of the European Convention when we are considering whether or
not we are going to deport somebody from this country to another
country, and we accept the burden of proof laid down in the Chahal
case. What I am unclear about from your questions, Mr Tyrie, is
in what context you are asking me about the burden of proof or
the risk of there being torture; in what context is the American
Government applying the test that you are referring me to.
Q204 Mr Tyrie: When we allow a US
rendition through this country, and there have been several by
the United States—
Lord Falconer of Thoroton: To
where?
Q205 Mr Tyrie: To a country which
they have announced to us is a country where historically there
has been a risk of torture.
Lord Falconer of Thoroton: The
allegations of extraordinary rendition, as I understand them,
are about people being delivered to countries where there are
American installations. That is the allegation, is it not?
Chairman: It is broader than that.
Q206 Mr Tyrie: I am extremely perturbed
by your reply. On the contrary, the majority of renditions are
cases where people are transported from US bases to places where
they may be tortured.
Lord Falconer of Thoroton: As
I understand the allegations—
Mr Tyrie: Among those are Egypt and Syria
and a number of other countries in the Middle East and former
Soviet Asia. The question that I am asking you—
Chairman: One voice at a time. Perhaps
if you let Mr Tyrie complete his question, then I will have silence
so that it can be answered.
Q207 Mr Tyrie: Perhaps we can just
arrive at the key point because I am very concerned that you do
not seem to be completely on top of the legal position. The greatest
single concern is that the UK definition of the likelihood of
torture, to which I have just been referring, that would be applied
to our own deportations and the definition of the real risk of
torture, is not the definition that is being applied to US renditions
through this country. The question I have for you is whether or
not you are confident that when those renditions have taken place
and when any future renditions may take place the US Government
is fully aware that it must obey and abide by the UK definition
of Article 3.
Lord Falconer of Thoroton: Of
course, when it comes through our country it has got to be our
law, but that was not the question you were previously asking.
Q208 Mr Tyrie: I am asking it now.
Lord Falconer of Thoroton: Of
course it has got to be UK law.
Chairman: That seems to be a straight
answer.
Q209 Mr Tyrie: And the US Government
has been made aware?
Lord Falconer of Thoroton: Of
course they know that, yes.
Q210 Mr Tyrie: What action are we
going to take if we discover that they are in breach?
Lord Falconer of Thoroton: We
will not allow it. We have made that clear.
Q211 Mr Khabra: I have in my constituency
casework on English asylum cases, and in my personal experience
I believe that the Home Office immigration system is failing to
tackle the problem. As you know, recently Mr Justice Hodge gave
evidence to the Home Affairs committee for its inquiry into immigration
control and referred to the longstanding problem of backlogs in
asylum and the immigration system. He said there are about 47,000
cases awaiting hearing and also he estimated that it would take
up to spring 2007 to clear the backlog. Can I also remind you
that when you gave evidence to the committee in October 2005 you
accepted that there were problems with a backlog of immigration
appeals. To quote you: "There was always a backlog in relation
to immigration cases. I do not think the abolition of one tier
alone was ever going to deal—this is immigration as opposed
to asylum cases—with that. They need to work their way through
it." Could I ask you what progress has been made in relation
to the acknowledged backlog of immigration appeals since your
last appearance before the committee?
Lord Falconer of Thoroton: As
you rightly quote me in saying, removing one tier is not going
to get rid of the backlog by itself, and indeed setting up a new
asylum and immigration tribunal has had the effect of bringing
out of the previous system a number of cases that had got lost
in the woodwork, and therefore there are quite a lot of extra
cases that got flushed out in the change. We need to do things
about the backlog. The things that we are doing are that we are
appointing 100 extra judges or adjudicators to seek to deal with
the backlog, we are working closely with UK Visas and the Home
Office to streamline the entry clearance process because entry
clearance appeals are one of the big areas where there is a problem.
We are also seeking to introduce a new points-based system by
the new Bill that is going through Parliament at the moment, but
that will not come on stream for some time, so it is basically
extra judges and a streamlined entry clearance process.
Q212 Mr Khabra: What is your estimation
with the introduction of the new Bill? Will it take a year, two
years or two and a half years to clear the backlog?
Lord Falconer of Thoroton: It
is difficult to say. I think there are something like 88,000 cases
at the moment waiting to be dealt with. I think they are dealing
with more cases now than are coming on stream. I cannot give an
estimate of how long it would take to deal with the backlog, but
gradually the backlog is going down.
Q213 Mr Khabra: You will accept that
the new migration into the country is a big problem; it is another
problem. I do not know whether or not the new Bill, whatever the
new Bill will be, will be able to control migration into the country
which is still happening—illegal, legal, overstayers. This
is a big issue.
Lord Falconer of Thoroton: The
new Bill will help to some extent, I think, in that respect, but
obviously it is not a complete solution to all the problems of
both illegal and legal immigration.
Q214 Mr Khabra: Do you accept that
this backlog of immigration appeals is caused by the drive to
hear asylum appeals quickly because, as you know, there are two
problems: one is ordinary immigration appeals, the other one is
asylum appeals. Through my experience more and more people are
still coming to seek asylum in the country. How do you consider
taking action to balance two different problems?
Lord Falconer of Thoroton: Part
of that problem is that the number of asylum appeals is going
down because the number of people seeking asylum is going down,
so to some extent that problem rights itself. You are absolutely
right: asylum appeals have been given priority over a period of
time and that has had the impact of pushing certain sorts of immigration
appeals lower down the process, but as the asylum appeals go down
hopefully that position will equalise.
Q215 Mr Khabra: There is another
problem. As you know, the legal aid changes have taken place and
they are going to cause problems for individual applicants, those
who are in the country who wish to make representation, legal
representation, whatever is possible for them under the given
system. The statistics suggest that the number of appeals and
reconsiderations is not going to go down, but legal aid changes
have meant that the applicants simply go ahead unrepresented,
they are not being represented by anybody, the money is not available,
they cannot afford it. What assessment have you made of the number
of applicants who are appealing unrepresented?
Lord Falconer of Thoroton: I do
not know what the number of applicants who are appealing who are
unrepresented is, but the effect—
Q216 Chairman: There is another division
in the Lords.
Lord Falconer of Thoroton: Excuse
me.
Chairman: We will take the opportunity
to allow Mr Wright to finish questioning Alex Allan. We are nothing
if not versatile!
Q217 Jeremy Wright: I think I had
finished asking the question, and I think you were in the process
of answering it.
Alex Allan: You were asking about
efficiency and progress on the Gershon targets and I think I had
started to say that in some ways, if you look at the Department
for Constitutional Affairs as a whole, there are two key areas
in our efficiency targets. One is on legal aid and the other is
on the administrative work in particular in the Court Service.
On legal aid, I have to say that we are behind where we had hoped
to be earlier. Understanding the processes and trying to work
out how to get greater efficiency and procurement of legal services
has been difficult. One of the ways that we have now done it is
to set up Lord Carter's review and I am now confident that we
have got the way forward that will produce the efficiency savings
that Gershon was looking for. If you looked at a trajectory, are
we halfway up the ladder, no, but I do believe that the interim
report of the Carter review and the final report will show a convincing
way in which we are going to deliver the efficiency savings. On
the Court Service, I am confident that we will deliver efficiency
savings. We have got a significant programme of work going on
looking at how we can do that. We have just had published, about
ten days ago, and I think it was sent to the committee, the business
strategy for Her Majesty's Court Service which details a number
of ways in which the processes will be made more efficient and
how we can improve services to the public at the same time as
reducing costs, and so I am very confident on that side of the
account that we will deliver the efficiencies that we promised.
Q218 Jeremy Wright: Just in terms
of the process of analysing your progress towards the targets,
are there interim targets which you impose internally? Is that
something that the Civil Service does generally or is it something
that you do specifically in this department?
Alex Allan: I do not know the
answer about other departments. Certainly we do monitor where
we are on a trajectory towards the targets that Gershon set for
the future. That is clearly important because it would not be
prudent management simply to ignore it till the last year and
say, "Oops! We have suddenly got to deliver whatever it is
in efficiency savings this year", so certainly we look at
how we are doing towards the efficiency targets. In some ways
it is still early days for Her Majesty's Court Service and they
have been in operation less than a year, but I am confident that
the business plan and the work we are now doing to take forward
those sorts of reforms will produce the efficiency savings.
Q219 Chairman: I wonder if Alex Allan
could help us with a question which arises also out of the freedom
of information list, which is on the issue of the census. You
will know that 130 Members of Parliament have signed a motion
about the 1911 census, which, of course, in a few years' time
will become available, but under the Freedom of Information Act,
of course, it can be applied for and the department would be free
to release that information under the Act but has so far very
firmly insisted that it should not do so. What are the policy
considerations which lead to this decision and how compelling
are they?
Alex Allan: The 1911 census in
some ways is something of an anomaly in the process in that there
is a clear process for ensuring closure for a hundred years for
censuses after that, so that the 1921 census and thereafter are
all statutorily protected for a hundred years. The 1911 census
in that sense is an orphan. It is a very clear policy that a hundred
years is the appropriate period for encouraging people to believe
that the information they give out, very personal information
in some cases, will be protected throughout their lifetime, and
so that is something that as a matter of policy we wish to maintain.
It is an anomaly, as I say, in that the other census records are
held with the Office of National Statistics. The 1911 census,
because it occurred before the Census Act of 1920, is actually
in the custody of the National Archives. We are planning to publish
it. It is a huge exercise to get the whole census in a way that
can be released and nowadays would be released on line after the
100-year point, so that from then on we have got a guarantee that
anybody can access any of the information they want very readily.
As you may recall, when we released the last census in 2001 the
volume of demand was such that it caused considerable problems,
so we do recognise the interest. We are not in a position where
we could bring forward the planning for releasing the entire census
before then, and to go and pick out individual records for people
who applied under the Freedom of Information Act would, I think,
set the process of releasing the whole census back. There clearly
are complicated issues and obviously legal issues under the Freedom
of Information Act as well which we are considering.
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