Damian
Green: I wish to speak in favour of clause 55 standing
part of the Bill because I believe that their lordships struck the
appropriate balance. I have a scintilla of sympathy for the Minister
who is trying to introduce legislation that balances the needs of
justice for individual claimants and the needs of the court system. He
argued the case for—as he eloquently put it—finding a way
to resolve the stuffing up of the court
system.
Damian
Green: Sorry, bunging up, which is a legal term
that I have not come across before. If one reads the long, serious and
high-powered debate that took place on the matter in the Lords, greater
legal brains—not mine or the Minister’s; we both have
similar backgrounds and they are not legal backgrounds—have come
to the conclusion that the Government have got this wrong. For that
reason, this is one of the parts of the Bill which was radically
changed and what is now clause 55 was
introduced.
5
pm There
was widespread agreement in the other place that many of the cases from
the immigration and asylum courts could be transferred satisfactorily
to the new upper tribunal. That would be an effective way of reducing
the pressure on the administrative courts. However, there were a
significant number of issues that came up during that debate, which are
quite convincing and damaging to the case that the Minister has made.
What clause 55 does is limit the transfer of those cases to one
category that was held to be appropriate, and provides that the power
in the 2007 Act to limit appeals from the upper tribunal to the Court
of Appeal would not apply to asylum and immigration cases. Unlike the
original clause, which the Minister is seeking to reintroduce as new
clause 4, clause 55 specifies that it would not come into force until
the asylum and immigration tribunal had been transferred to a unified
tribunals system.
Early on in
his remarks, the Minister argued that clause 55 stands in the way of
the allocation of cases in the interests of justice. That is where his
argument falls down because he is striking the wrong balance. The
strongest objection made in the debate in the Lords to the
Government’s proposals was the concern that they were trying to
achieve the objective of cutting down access to the higher courts by
the back door. When the Government made an attempt to do that in 2004,
it was fiercely opposed, including by the Select Committee on Home
Affairs. It has been mentioned by the hon. Member for Carshalton and
Wallington that we have members of that committee on this
one.
No one would
deny that there is a real problem of overburdening the courts, or that
immigration cases significantly contribute to that overburdening.
Indeed, the Home Affairs Committee does not object in principle to
cases which are not highly significant or complex being considered in
the upper tribunal. However, it came to the right conclusion when it
said that failings on the part of the Home Office must not be
compensated for by a lessening of appeal rights in those complex cases
which engage human rights issues or constitutional
principles.
That is the
nub of the argument, where the balance needs to be struck. The Minister
will be aware of other groups, for example, the Immigration Law
Practitioners Association. It said that it
“plainly cannot
be argued that the proposal will effect some fundamental change in the
nature of the tribunal hearing these appeals which will justify
shutting off the constitutional right of access to the High Court and
severely restricting access to the Court of Appeal.”
In summary,
most of those who took part in the debate in the other place agreed
that some—or even most—asylum and immigration could be
transferred to the upper tribunal. There was a general view that the
jurisdiction of the High Court should not be ousted altogether. A key
point in that regard was made by Lady Butler-Sloss, who is a very
distinguished judge. She saw the issue as
“not which
court, but which judge, should deal with the
case.”—[Official Report, House of Lords, 11
February 2009; Vol. 707, c.
1174.] She
also said that the judges should be carefully selected and trained.
That is the point; we want the most difficult cases in front of the
right judges. This is where the Government are in danger of finding
themselves in an unbalanced position by creating other problems in an
attempt to clear up the problem of delay. Most notably, they could find
that they do not have the right cases in
front of the right judges by removing the jurisdiction from the
appropriate level of court. That is why their lordships had an array of
amendments in front of them, including one that took a “middle
way”. However, they chose the more radical amendment. My noble
Friend Lord Kingsland said that he was extremely unhappy to permit any
transfers of immigration or asylum judicial review cases until they had
seen the effect of the transfer of the AIT to the new unified tribunal
service. Their
lordships discussed this key issue of timing, but the Minister did not
address this point. Many of their lordships said that Government
proposals to change the system were simply premature, coming only
18 months after Parliament had decided to exclude such cases
from the upper tribunal, and only three months after the tribunal had
started work. That is a very valid argument; we do not yet know how
this unified tribunal system is working, so it is not sensible to
decide now to take such an important class of cases away from the High
Court and allow them to go only as far as the upper tribunal. We should
see how the system works in practice before we take that
action.
Lord Thomas
of Gresford, the Liberal Democrat spokesman, pointed out three big
problems with the provision: an immediate risk of injustice to the
litigant, a risk that inadequate handling of judicial reviews by an
untested tribunal will result in an increased work load for the
supervising court—the Court of Appeal—and the risk of
reduced supervision at the Home Office. The latter could result in more
liberties being taken, leading to more instances of injustice and,
therefore, increased litigation. The root of that objection is the
thought that, in attempting to clear up the court system, this will not
work, and might even result in more, rather than less,
litigation. The
next argument advanced, which was quite convincing, was that the
horrendous delays in the immigration and asylum courts, which
contribute to many of the wider problems in the immigration system, are
caused not by the simple volume of cases, but by other factors, many of
which are under the control of Ministers and the Home Office itself.
Those factors include the poor quality of the initial decisions, the
fault of the appeals structure, the fact that withdrawing appeal rights
has led to more judicial review applications, the emphasis on speed
rather than quality, the failure of the Home Office to comply with case
management directions, and the lack of adequate provision for early
legal
representation. There
is some validity in each of those objections, especially the one about
the poor quality of initial decisions. I am sure that those of us who
deal with such matters on a daily basis hear constantly about the many
cases that appear before the AIT in which no presenting officer is
present, which means that the judge will inevitably hear only one side
of the story. That, in itself, contributes to the less-than-optimal
operation of the AIT. In seeking to solve the AIT’s problems,
the Government might actually be looking in the wrong
direction.
The
Minister’s objective is not a bad one. He is trying to speed up
the asylum and immigration courts. I do not think that anyone would
object to that. [ Hon. Members: “Some
might.”] Yes, some might, but I can assure the Minister that
neither I, nor anyone else in my party, would. However, the problem is
that if he simply
goes for speed, rather than speed accompanied by fairness, not only will
he make the system less fair, but, in the long run, he might not even
solve the problem of speed, because there will be more and more
appeals. That point was made very powerfully by some very powerful
legal brains in another place. For the Government simply to ignore them
would be foolish and would lead the House down the wrong
track. As I say, I
speak in favour of the existing clause 55, and I hope that the Minister
will not press his amendments and new clause
4.
Tom
Brake: I do not propose to cover the same ground as the
hon. Member for Ashford. He quoted my party’s spokesman in the
other place and highlighted concerns raised there. Those concerns still
apply here, at least with regard to the proposal that the Minister has
put before us today. Therefore, we believe that the clause should be
retained.
My hon.
Friend the Member for Rochdale asked me point out that in the summary
table to which the Minister referred there are no figures quoted in the
section on appeals—reduced asylum and immigration cases before
higher courts. That reduction is a stated benefit, but again it is
unfortunately not a quantified stated benefit. In fact, in the whole of
that summary table not a single benefit has been quantified. I
understand that the Minister may not want to give incorrect figures,
but he now seems to have lurched in completely the opposite direction
and is providing us with no figures at all, which is just as unhelpful
as providing incorrect figures used to be.
So I hope
that the Minister will backtrack from his proposal to remove the
clause. All the concerns that were expressed in the other place still
exist; they have not been addressed. I hope that the clause is retained
in the Bill.
Mr.
Woolas: In his absence, I congratulate the hon. Member for
Rochdale on spotting that. If he can tell me how many appeals there
will be in three years’ time, I will tell him what our estimate
of the costs is. The situation is not as scientific as that. None the
less, I take his point.
Let me try to
provide some reassurances to the Committee. This is a serious debate
about the structure of our legal decision-making system in the asylum
and immigration processes. We have a situation that, if it is not
unique, is unusual. The other place has made its view clear and the
judiciary made their views clear in their response—as far as it
is possible to say that there is a consensus among the judiciary and
while recognising their independence—in broad support of the
Government’s policies. That situation has been brought about by
a very practical set of facts.
It is simply
not fair to say that the fairness of the decisions is in question. I
agree with the hon. Member for Ashford on his last criterion. I have
some sympathy with the idea of early legal advice. Indeed, I have some
sympathy with the idea of early legal representation to improve the
quality of decision making. However, I cannot accept his other four or
five criteria.
I do not
accept that there is unfairness in a judicial review being heard in the
expert upper tribunal, because the upper tribunals will consist of the
expert judges. So
I do not accept that that is the case. That principle was accepted for
non-immigration cases in the Tribunals, Courts and Enforcement Act
2007, and there is no reason for a different point of view in
immigration cases. On the point
about the decisions, as I have already said, last year we had about
4,454 applications for judicial review. A total of 85 per cent. of
those applications were rejected just on the papers. That suggests that
the applications for judicial review are abusive, if that is the right
word, rather than that there are poor decisions. All Members of
Parliament who deal with these issues will recognise the truth of what
I have just said.
I am not in
any sense taking away the right to apply for a judicial review. I am
trying to put in place a system that deals with judicial review more
effectively. Indeed, the members of the judiciary who are the most
senior lawyers in this regard believe that we have got this matter
right. Let me just refer to the UKBA website. We have support from the
Master of the Rolls, the president of the asylum and immigration
tribunal and the president of the Queen’s bench division, among
other members of the judiciary, for the changes proposed in the Bill to
the way in which judicial review should be considered. That follows the
consultation on reform of the immigration and asylum appeals system. We
have not plucked it out of thin air; we have been working on the
proposals with colleagues and the judiciary for a year, and, on the
whole, they have come round—I am being very careful with my
words—to our point of
view. The
president of the Queen’s bench division
said: “The
proposals in the Consultation Paper are strongly supported. The judges
of the Administrative Court, the court most directly affected, were
invited to provide an input into this response. The only reaction
received from them has been one of warm endorsement of the proposals.
There has been no opposition to the
proposals.” The
senior president of tribunals
said: “I
also welcome the proposal to remove the statutory bar on the transfer
of immigration judicial review cases to the Upper
Tribunal.” The
upper tribunal will be well established at the point at which the
proposals are implemented. He went
on: “The
Lord Chief Justice and Lord President have already directed the
transfer of some non-immigration related judicial review to the Upper
Tribunal from its inception. The necessary legislative change should be
made as soon as possible to allow transfer of immigration related
cases.” That
is strong support. I recognise that the other place took a different
view. There was a well-informed debate there; that is what it is for
and I respect that. However, the judiciary and the UK Border Agency
have to run a system, and we think that this is the best way
forward. On
the accusation that the measure is an attempt to oust judicial reviews,
the right of judicial review will still exist but some cases will be
heard in the upper tribunal rather than in the High Court. It will be
for the High Court judges, or the Lord Chief Justice with the agreement
of the Lord Chancellor, to decide which cases will be heard in the
upper tribunal. The measure does not take away that right. It makes the
system more effective. How many cases will be transferred into the
upper tribunal will be a decision for the High Court and the Lord Chief
Justice. The Lord Chief Justice will be able to take into account the
capacity of the upper tribunal, as well as the burden on the High
Court,
which at the moment we simply cannot do. It is surely not in the
interests of justice that 60 to 70 per cent. of High Court decisions
are on
immigration. The
issue of timing is important, and I respect the hon. Gentleman’s
point of view on that. He said that it was a question of balance and
that we had the balance wrong. He agreed with the other place. My
argument is that we have the balance right and I shall explain why. The
Tribunals, Courts and Enforcement Act 2007, on which I have in part
based my argument, allows most judicial review cases to be transferred
to the upper tribunal, but excludes immigration cases. When that Act
was passed we did not intend to transfer the AIT into the unified
system, and it does not make sense for immigration judicial review
cases to be heard in the upper tribunal unless immigration judges are
available. In light of the burden on the higher courts and our decision
to transfer the AIT, the time is right to legislate to remove that
barrier. I believe that I have shown that, on the whole, the judiciary
support
that. Of
course, we will not commence the legislation until the specialist
immigration judges are in the upper tribunal. Contrary to the argument
of the hon. Member for Ashford, I believe that we have the balance
right in the interests of fairness, justice and an effective
immigration system. The fundamental problem with immigration decision
making, which distinguishes it from most other areas of tribunal
decisions, is that circumstances change for individuals as time passes.
That means that a more effective system is more desirable, not just for
the system as a whole but for the individual. Those are my three main
arguments for rejecting the clause as it stands and proposing a new
clause for a later
stage.
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