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Baroness Williams of Crosby moved Amendment No. 117:

Page 41, line 20, leave out ("On the issuing of a certificate by the Secretary of State") and insert ("If the Adjudicator agrees with the opinion of the Secretary of State as expressed in a certificate issued").

The noble Baroness said: At first glance, the amendment may look a great deal less significant than the one that we have just debated. However, it has a considerable bearing on the fairness and justice of the Bill. Clause 63 deals with people who have reached the final appeal stage; that is, who had a first hearing, then an appeal which may have been dismissed.

Amendment No. 117 deals with the question of whether an applicant will be treated as having already made out his case in an appeal in such a way as not to entitle him to any further appeal. In general, we on this side of the Committee agree that the appeal procedure can be abused and that there is a great deal to be said for limiting the number of appeals to those which can receive a final judgment.

However, Clause 63 enables the appeal finally to be determined either on the ground that the case has already been heard or on the ground that it was not heard or advanced but could have been. What then happens is that the Secretary of State is permitted to issue a certificate signed by himself, on the strength of which he is able to argue that the appeal will be either upheld or rejected. We are greatly concerned that that makes the Secretary of State the judge of his own court.

The purpose of the amendment is to make the adjudicator the person who makes the decision on the basis of the certificate. Then, and only then, will the certificate hold on the basis of the opinion of the Secretary of State. In other words, the Secretary of State could not on his own issue a certificate which would end the process of appeal, given that that is the applicant's last chance, without the agreement of the adjudicator.

It seems to us absolutely critical that the adjudicator should be brought into the process and that the matter should not be left wholly to the Secretary of State. If the Secretary of State were the sole issuer of a certificate, he would in a sense be both judge and jury. Therefore, the amendment seeks to provide that the adjudicator must agree to the issue of the certificate. Again, I remind the Committee that that brings the whole process to an end. I am particularly concerned that some appellants, especially those without legal advice, may be unaware of the complex grounds on which an appeal can be made; for example, with regard to the European Convention on Human Rights, or other international conventions. I therefore repeat that in our view it is absolutely critical that the adjudicator should be part of the process and that only with his agreement can the whole matter be brought to a conclusion. I beg to move.

Lord Cope of Berkeley: I rise to support the amendment. Looking at the matter, it seemed to me to be the case that one party to the granting or otherwise of the possibility of an appeal was to make the decision

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rather than the adjudicator who is the judicial authority in this case. Not being highly legally educated, I could not think of any other example in British law in which one of the parties--in this case, the Secretary of State--made the decision as to whether or not the appeal should be allowed. If there are other examples, no doubt the Minister will point them out to us.

Earl Russell: Perhaps I may ask the Minister a question which I am sure he is legally well qualified to answer. Will he explain why, in the Government's opinion, this provision does not lay the Secretary of State open to judicial review as being judge and party in his own court? If he is any danger from that, my noble friend's amendment would save him from it. I believe that he ought to be grateful.

Lord Williams of Mostyn: The purpose of the amendment is to remove the Secretary of State's ability to thwart repeat appeals, which the noble Baroness condemned, by certifying that the grounds for further appeal contain nothing which has not already been considered. Clause 63(6) states:

    "On the issuing of a certificate by the Secretary of State under subsection (5), the appeal"--

I emphasise the next words--

    "so far as relating to those grounds, is to be treated as finally determined".

The circumscription is there, and it is deliberate. It means that we are looking to a new system to prevent people making a series of appeals on the same issues. I am sorry to repeat that again. I must say--I hope that it will be to the comfort of the Committee--that where a genuinely new situation arises after the determination of the appeal, we cannot and should not deny a fresh hearing if a further right of appeal exists. I give the Committee an example. A person may make a further claim, having already failed to become a refugee here, if there has been a coup in the country of origin. That would not disentitle any application or appeal to be brought forward by virtue of the Secretary of State's certificate.

I am quite unable to accept that there should be a fresh hearing if all the issues have already been determined by the appellate authority. If the amendment were accepted, there would have to be a hearing in every case for the adjudicator to agree the Secretary of State's certificate--in other words, a completely pointless exercise. If the proposal of the noble Earl, Lord Russell, were to be accepted as a protection for the Home Secretary from legal challenge, I should be the first to accept it. But I must point out that although the certificate is expressed in the way that it is expressed, judicial review can be brought against the issue of the certificate on the normal grounds for judicial review.

Bearing in mind the emphasis I have given to those grounds, we are really saying that if the grounds are the same, and they have been fully ventilated, the Secretary of State is entitled to certify that. If he behaves in a way which is susceptible to judicial review, that remains.

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4.15 p.m.

Baroness Williams of Crosby: I am generally puzzled by the Minister's response. Perhaps he may be able to help me to understand it better. Like the Minister, we do not want to see a system under which people may appeal on grounds already advanced; nor do we want to see a system where someone may appeal who could perfectly well have advanced those grounds earlier but chose not to do so. We fully share the Minister's desire to conclude the process. However, with respect, our argument is different; namely, that in concluding the process, the Secretary of State should not be the sole decision-maker, but should couple with his views those of the adjudicator, who will, for those purposes, be treated as independent of the immigration authorities in a way that no Home Secretary can be as they are answerable and accountable to him.

We have no desire to prolong the appeal process, provided that the adjudicator and the Home Secretary are of one mind. If they are not, in our view the matter should not be concluded. An exact parallel can be drawn with paragraph 9 of Schedule 4, the wording of which we drew on for our amendment. In respect of convention cases, paragraph 9(2) states:

    "If, on an appeal to which this paragraph applies, the adjudicator agrees that the claim is one to which this paragraph applies, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal".

In other words, that is another instance of certification which brings to an end the process of appeal. In this case, the issue of judge and jury in one's own court is properly dealt with because the adjudicator must agree with the certificate. That is all that our amendment seeks to achieve. With great respect, I did not follow the Minister's argument on that point.

Lord Williams of Mostyn: I am sure that that was my fault. I was trying to say that we believe that the certification by the Secretary of State is perfectly rational and can be upheld as a system, because he is required to certify that all the grounds have been considered earlier and that there is nothing further on which the adjudicator needs to decide. There is no live issue left.

The consequence of the noble Baroness's amendment, were it to be accepted, would simply be a further spinning out of the process. As I said earlier, there would have to be a hearing before the adjudicator--

Lord Avebury: As the Minister has twice mentioned a hearing, will he confirm that there is nothing in the amendment which says that the adjudicator must have a hearing for the purpose of reaching his decision? My noble friend is suggesting that he should confirm that the grounds on which the appeal would be based are a repetition of those which have been heard earlier. He is simply confirming the opinion of the Secretary of State that that was the case. Surely he can do that without a hearing.

Lord Williams of Mostyn: I imagine that the legal approach in those circumstances would be what we have already discovered. If the adjudicator comes to a view,

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both parties will be entitled to be heard by him in that judicial context. I have no doubt that that would be used yet again as a device to spin out the procedures in a way that is quite illegitimate. I stress that we are dealing with a certificate that is judicially reviewable. It is a certificate from the Home Secretary to say that the matter has already been considered.

I shall certainly give some thought to the matter. I can give no more favourable reception than that. The circumstances envisaged by paragraph 9 of Schedule 4 are different. Before we look at sub-paragraph (2) of paragraph 9 we need to examine the context--convention cases and those involving removal from the jurisdiction. There are quite different circumstances, which is why we have adopted a different approach.

I shall give careful thought to what the noble Baroness said. I believe that we have struck the right balance to give people fair hearings, fair opportunity and fair legal representation, but, at the end of the day, we can say that all the matters have been adjudicated upon and there is nothing new in the appeal.

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