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Mr. Woolas:
As it happens, I have before me a note on that very point. In his evidence to the Home Affairs Committee, the chief inspector of the UK Border Agency made it clear that he was giving a personal view, and that the issue was a matter for Parliament; of course, he is right, and I respect him for that. He said that he thought that the IPCC should have a role wherever enforcement powers were exercised, and he did not think that the IPCC's remit should be curtailed by geographical boundaries. I think that that refers to the juxtaposed borders, which are in France. Just for the record, to answer the points made by the hon. Member for Ashford in quotes to the tabloid newspapers, we
have not given £15 million to the French to police their own border; we are spending £15 million to police our border, which, with the agreement of the French, is in France, and thank goodness it is.
As I have said, the Government remain committed to securing appropriate oversight of all complaints and incidents. It has always been our intention that the IPCC should have a statutory role in relation to the UKBA only in England and Wales, just as it does in respect of the police and the other organisations that it oversees. However, there is an argument for introducing oversight of complaints relating to the exercise of specified enforcement functions by our officers at juxtaposed controls. Recently, following the Standing Committee debate on the issue, we wrote to the IPCC to inquire whether it would be content to consider having a non-statutory role in overseeing UKBA internal investigations into relevant matters at the juxtaposed controls. We await a formal response from it, but I understand that it is looking at the proposal positively.
It makes sense to get the experts in, but as I am sure that the hon. Member for Carshalton and Wallington appreciates, there are delicate matters relating to the French; they are tremendous partners in the endeavour that we are discussing, but we recognise the sovereignty of their soil.
Mr. Woolas: I am sure that the hon. Gentleman agrees; he is nodding his assent. I am grateful to him for that. I believe that I have answered all the specific questions that were raised. Some of the debate was more general, but I hope that I have satisfied right hon. and hon. Members that we have considered the points that were made. I therefore ask the House to oppose the amendments that hon. Members have tabled, and to support the Government new clause.
New clause 2 accordingly read a Second time, and added to the Bill.
'(1) In section 31A of the Supreme Court Act 1981 (c. 54) (England and Wales: transfer from the High Court to the Upper Tribunal)-
(a) after subsection (2) insert-
"(2A) If Conditions 1, 2, 3 and 5 are met, but Condition 4 is not, the High Court must by order transfer the application to the Upper Tribunal.", and
(b) after subsection (7) insert-
"(8) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 (c. 41) wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision)."
(2) In section 25A of the Judicature (Northern Ireland) Act 1978 (c. 23) (Northern Ireland: transfer from the High Court to the Upper Tribunal)-
(a) after subsection (2) insert-
"(2A) If Conditions 1, 2, 3 and 5 are met, but Condition 4 is not, the High Court must by order transfer the application to the Upper Tribunal.", and
(b) after subsection (7) insert-
"(8) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 (c. 41) wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision)."
(3) In section 20 of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (Scotland: transfer from the Court of Session to the Upper Tribunal)-
(a) in subsection (1), for the "and" at the end of paragraph (a) substitute-
"(aa) must, if Conditions 1, 2 and 5 are met, but Condition 4 is not, and", and
(b) after subsection (5) insert-
"(5A) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 (c. 41) wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision)."'.- (Mr. Woolas.)
Brought up, and read the First time.
Mr. Woolas: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: new clause 6- Right of appeal to court of appeal-
'Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (right of appeal to court of appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.'.
Amendment 31, in clause 54, page 45, line 21, leave out paragraph (a).
Amendment 32, page 45, line 23, leave out paragraph (c).
Amendment 33, page 45, line 26, leave out paragraph (a).
Amendment 34, page 45, line 28, leave out paragraph (c).
Amendment 35, page 45, line 31, leave out paragraph (a).
Amendment 36, page 45, line 33, leave out paragraph (c).
Amendment 37, page 45, line 33, at end insert-
'(3A) Nothing in section 31A of the Supreme Court Act 1981 (c. 54) (England and Wales transfer from the High Court to the Upper Tribunal), section 25 of the Judicature (Northern Ireland) Act 1978 (c. 23) (Northern Ireland: transfer from the High Court to the Upper Tribunal) or section 20 of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (transfer from the Court of Session to the Upper Tribunal) shall permit the transfer of any application where the application calls into question a decision under-
(a) the British Nationality Act 1981 (c. 61),
(b) any instrument having effect under an enactment within paragraph (a), or
(c) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship.'.
Amendment 38, page 45, line 33, at end insert-
'(3A) The Secretary of State must by affirmative order make provision for the transfer of fresh claim applications made under rule 353 of the Immigration Rules to the Upper Tribunal.
(3B) An order under the above subsection may not be made until after the Asylum and Immigration jurisdiction has been transferred to the First Tier Tribunal and Upper Tribunal.'.
Government amendments 42 and 43.
Amendment 25, in clause 59, page 47, line 39, at end insert
', provided this is no sooner than two years after the date of Royal Assent,'.Government amendments 44 and 45.
Mr. Woolas: We now move on to the administration of justice, and judicial review in particular. In my opening remarks on the previous group of amendments, I mentioned our sadness, which I know is reflected across the House, at the death of Lord Kingsland at the weekend. He really was a superb politician who brought the best attributes of politics to his public service. He had a long and distinguished career in the areas of public policy, politics and the law. Indeed, I recall that he represented Stanley Adams, for those who remember that case. He was greatly appreciated in the Home Office. He genuinely improved our legislation by his scrutiny. His death at the weekend caused great sadness and was a great loss to the other place.
The amendments that we have brought forward reflect our discussions with Lord Kingsland to seek an accommodation of his concerns and those of Members in the other House. With their help, I think that we have managed to make a good job of that. The Government's position, as I explained to the Committee, was and continues to be that we should give the judiciary the powers that they need to manage cases in the best interests of justice.
The right hon. Member for Suffolk, Coastal (Mr. Gummer) expressed his frustration at a particular case, and I suspect that that reflected his frustration at other cases. Part of our objective is to ensure that the expert judges take the decisions. Judicial reviews often go above that level, or to the side of it, as some would put it. Part of our objective is precisely to ensure that it is the immigration judges, who have the expertise, experience and knowledge, who take the decisions. By that means, we are trying to address some of the frustrations felt by the right hon. Gentleman and, I am sure, other hon. Members; my hon. Friend the Member for Walthamstow (Mr. Gerrard) has raised similar frustrations with me on numerous occasions.
6.45 pm
In Committee, we reinstated the original judicial review clause to ensure that the judiciary has the necessary powers available to them. However, we said that we wanted to seek consensus on the Bill, so I am mindful of the views expressed in another place. New clause 8, amendment 25 and amendments 41 to 45 reflect the essence of the clause as it was when it left the other place. Concern was expressed about the timing of transfers of judicial review, and about overwhelming the upper tribunal. There were also differences on points of principle, but it is, I believe, recognised that the administrative court is under enormous pressure. We have made the case for the transfer of at least some cases. Fresh claims have been identified by the Lord Chief Justice as the most suitable class of case for transfer. I should explain to the House that a "fresh claim" is not a fresh claim; it is a renewed or refreshed claim.
The effect of our proposed new clause is that the Lord Chief Justice, with the agreement of the Lord Chancellor, will be able to order the transfer of judicial
review cases that deal with so-called fresh claims to the upper tribunal. Transfer of other cases, either on a case-by-case basis or on a class-of-case basis, will not be possible; that is the change to the earlier proposal. That will go a significant way, I believe, to alleviating the burden on the higher courts. Once the upper tribunal has established its ability to deal efficiently and effectively with fresh claims judicial reviews, the House may be persuaded that it should be able to deal with other cases, too, but that is a matter for another day.
Paul Rowen (Rochdale) (LD): In the light of what the Minister says, does he have estimates of the number of cases that will be transferred, and the number that will be left where they are?
Mr. Woolas: I thank the hon. Gentleman for his question; he goes to the heart of the matter. About 4,600 judicial review applications were made in the last year. Of those, about 900 related to the "fresh claims" class. That is a significant number, and I am advised that those 900 are the largest single class, but they are far from being the majority of claims, so his question is pertinent. The measure meets our objective of bringing us more into line with other tribunal services. It meets our objective relating to the good point made by the hon. Member for Broxbourne (Mr. Walker) about the speed and efficiency of decisions. It meets our objective of having the expertise available. It also allows the upper court to look at the other cases. It does not exclude their transfer to the upper tribunal. It just means that they must go via that route.
Mr. Walker: Can the Minister say how many cases are referred to judicial review each year?
Mr. Woolas: There are an incredible 4,600-plus applications. Around 85 per cent. of them are rejected. That backs up my assertion that some of them are an attempt to play the system. Of course we do not wish to deny justice or access to justice, and our proposals do not do so. That has been accepted. The hon. Gentleman is right: justice delayed is justice denied.
The new clause extends the same powers to the Lord Chief Justice in Northern Ireland and the Lord President in Scotland, in line with the procedures set out in the Tribunals, Courts and Enforcement Act 2007. It also provides that it cannot be commenced-the hon. Member for Ashford has tabled an amendment on the commencement provisions-until the asylum and immigration tribunal has been transferred into the first-tier tribunal and upper tribunal system established by the Tribunals, Courts and Enforcement Act. That was always the policy intention, which is why I am happy to make it clear in the Bill.
The amendments tabled by the Opposition address a number of points. Some are on similar lines to the Government's own amendment, so I cannot in all fairness resist them on policy grounds. Others limit the power to transfer judicial reviews in ways that we regard as unacceptable. The effect of new clause 6 and amendments 31 to 38 is that the Lord Chancellor cannot limit the test for appealing to the Court of Appeal. High Court judges must review every case before transferring them to the upper tribunal, and even then cannot transfer nationality cases-not until the asylum and immigration tribunal has transferred into the unified tribunal system.
As I said, I have no difficulty with this last point, which is covered in the Government's new clause. Similarly, the requirement under amendment 38 that the Secretary of State make provision for the transfer of fresh claims is unnecessary, first because we are committed to addressing the burden in the High Court as soon as possible, and secondly because such orders are not required to implement case-by-case transfer of cases. Amendment 25, however, would mean that the clause cannot be commenced until two years after Royal Assent. The burden on the higher courts exists now and we need to address it now. I understand the motive behind the amendments, but we need to get on with it.
Amendment 38 requires commencement by affirmative order. This is not necessary or desirable, if we are talking only about commencing the power to transfer a limited class of cases, as I said we are. The judiciary have made it very clear, and the other place has accepted in principle, that fresh claims cases should be transferred, which makes commencement by affirmative order unnecessary.
The other amendments cause considerable difficulty. Primarily, they would cause difficulty for the judiciary, who would be hampered in their ability to manage cases in the best interests of justice. Some of the amendments in the group are concerned with limiting the categories of case that may be transferred, and the Government amendments achieve much the same ends. Amendment 38 suffers from the same drafting difficulties as we have seen in previous amendments to the clause- applications are not made under rule 353 of the immigration rules; they are refused under it.
Requiring a High Court judge to consider every case before transferring it defeats the point of allowing cases to be transferred into the upper tribunal. This is not what the judiciary wants and it does not address the burden that the higher courts are facing. If there is to be any positive impact from transferring fresh claims judicial review cases into the upper tribunal, they should be transferred on a class basis, without the need for a High Court judge to scrutinise every case. That is what the judiciary have asked for and what the Government amendments provide. The Opposition amendments would take away any possible benefit from clause 54, and I therefore ask the House to consider carefully the real-world impact and therefore to resist them.
New clause 6 prevents the Lord Chancellor from making an order that restricts the test for permission to appeal to the Court of Appeal to that set out in the Access to Justice Act 1999. The Master of the Rolls supports this more restrictive test-it is not something that we are imposing on the judiciary against their will, as some had feared. We are clear that the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal. That is a critical point, which came up in the other place.
The test would simply allow judges to refuse permission in cases where there was no important point of principle or practice and no other compelling reason to grant permission. It is preferable to have a single test for the hearing of appeals by the Court of Appeal, and we are satisfied that the amendment is not necessary to provide the protection for immigration cases, which we accept can raise important issues of life and liberty, although other appeals can also raise important issues. Again, I ask hon. Members to consider the impact of new clause 6.
Paul Rowen: The Minister makes an important point. Given the gravity of the statement that he has just made, will he write to Members with examples of how he sees that operating? New clause 6 was designed to ensure the safeguards that he says are not affected. If he could confirm that, it would go a long way to allaying many concerns that hon. Members have.
Mr. Woolas: I am happy to do that. I believe it would be helpful. One could say that I am giving in graciously. This is not the position that we started with at the beginning of the passage of the Bill. It is the consequence of the debate both in Committee and in the other place, and the discussions that we have had. I can assure the House that I have given Opposition and Cross-Bench peers access to advice from officials in a very open way, because the policy goal is to cut some of the delays that we have discussed. There is a consensus across the spectrum that that should be done, from those who want to see fair administration and justice for asylum seekers through to those who do not want any, if I may put it that way. Because the fresh claims category is the most significant class, although not the majority, I can support the compromise that has been proposed, and at the same time guarantee access to the Court of Appeal on a reasonable basis.
The test would allow judges to refuse permission to cases where there was no important point of principle, as I said. The write-round with examples that the hon. Gentleman has asked for is a helpful suggestion, because it will show hon. Members in this place and in the other place our intent.
The Government amendments represent the discussions that we have had, and I hope they are sufficient to address Members' concerns about which judicial reviews should transfer, and when. Although I am disappointed that we have not been able to go further, I believe this is a sensible way forward.
Judicial review applications represent the biggest significant class of case not just in immigration hearings, but in the higher courts, I am advised. Our constituents will not understand why 4,600-plus can be made and, in layperson's terms, clog up the higher courts, and that 85 per cent. of those can end up being refused, when access to a judicial review application can be made in the upper tribunal and heard by an immigration judge with the relevant expertise. There is a common-sense case for the measure, and it provides the guarantee of access to justice that hon. Members on the Government and Opposition Benches have sought, so I ask the House to support the Government motion.
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