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Lord Kingsland: My Lords, I thank the Minister and all noble and noble and learned Lords who have spoken in the debate. Perhaps the noble Baroness will allow me one or two reflections on what she said. First, I do not believeand in doing so perhaps I am alone in your Lordships' Housethat the fact that my proposal will increase the expenditure of the National Health Service is relevant in this decision. If people are under-compensated and suffer as a result, that is a far more serious matter than the Government having to raise a little more money in taxation. I am delighted to see the noble Baroness confirming that that was not a consideration in the mind of the noble and learned Lord the Lord Chancellor when he made his decision.
While the noble Baroness was making her speech, I tried to test what she said against the judgment of the noble and learned Lord, Lord Lloyd, in Wells v Wells. With the greatest possible respect to the noble Baroness, I must say that I found her conclusions about what the noble and learned Lord the Lord
In those circumstances, I believe that the noble and learned Lord the Lord Chancellor ought to have drawn the logical arithmetical conclusions and not insert some additional factor which had no place in the judgment of the noble and learned Lord, Lord Lloyd. In those circumstances, I should like to test the opinion of the House.
Resolved in the negative, and Motion disagreed to accordingly.
The noble Earl said: At least this is a simple and straightforward amendment. It addresses the clause in the Bill which requires that an appeal against certification must not be commenced after a period of three months from the date the certificate is issued. The amendment seeks to add to that the proviso, Xwithout leave", thus allowing SIAC a discretion to accept a late appeal if it saw fit.
A great many reasons can put forward as to why an appeal may be delayed which may not be the fault of the applicant. For example, those who have been the victims of torture often find it extremely difficult to tell a coherent story for some time afterwards. I believe that there is no reason at all why being a terrorist and being a victim of torture should be incompatible. Indeed, if one happens to come from Iraq, the conjunction is quite probable.
Many appeals are delayed because of the incompetence of the legal advice available to those concerned. If one deals with claims for asylum, one comes across such cases all the time. In some cases, the inability to appeal after a fixed period may cause real injustice. It could save the Government a good deal of trouble and save Ministers a good deal of correspondence if SIAC were to be allowed what I believe would prove to be an extremely helpful safety valve. I beg to move.
Lord Goldsmith: Perhaps I may put this into context. First, we are concerned here with the case of persons who have been detained. In those circumstances, three months would appear at first glance to be a more than ample period in which to launch an appeal. They would be visited by representatives. No physical barrier would be put in the way of lodging an appeal. Furthermore, it is worth recording that an appeal against certification is not the only remedy available. It is worth notingthis has not been referred to so far in the debatethat, as the basis for the decision is an immigration decision to refuse leave to enter, or whatever else it may be, and as that decision is a necessary pre-condition for the certification giving effect to the detention, there is an appellate procedure in relation to that aspect in any event. There is also the possibility at the end of six months of applying for a review of certification.
In those circumstances, I suggest that three months for the appeal is an adequate time. The likelihood is that an appeal will be put in much earlier. I invite the noble Earl to consider what I have said. What he has said must also be considered, but I hope that he will not press the amendment.
Earl Russell: I thank the noble and learned Lord for that reply. I made no objection to three months as a general target. It seems perfectly reasonable as a general rule. My argument was not for changing the general rule but for allowing a degree of discretion. While clearly it makes a significant difference that other routes are available, nevertheless there will be some cases for which this appeal is by far the most appropriate route.
Some of the people concerned are likely to be genuine asylum seekers. One makes no presumption as to what the proportion may be, but the chance that some of them will be is quite considerable. Among that group of people, this type of delay in putting in an appeal is quite common. It can also happen because of ordinary physical illness, which can sometimes keep people in a state where they are unfit to put in an appeal for a considerable length of time.
I cannot see that it would do SIAC any harm to allow itself this discretion. After all, it would not have to exercise it unless it saw a good reason for doing so. However, I do not see any need to take the matter