| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Avebury moved Amendment No. 196D:
- Page 44, line 36, leave out "in his opinion"
The noble Lord said: The purpose of the amendment is to retain the current wording for "third country" certification as in Section 72(2)(a) of the 1999 Act and to ensure that if the Secretary of State has to certify he must do so as to the merits of the claim rather than his own opinion of the merits.
In the 1999 Act, a person can appeal against removal to a safe third country when the Secretary of State has issued a certificate under Section 11 or 12 that under standing arrangements with an EU state that state has agreed to be responsible for his asylum claim; or that he is to be sent to an EU state other than under standing arrangements or to a state designated by the Secretary of State subject to specified conditions. Where the claimant says that any of the conditions attached to that claim were not satisfied when it was issued or have since ceased to be satisfied, he does have a right of appeal, but under Section 72(2)(a) it is only exercisable from outside the UK where the Secretary of State certifies that his allegation that an authority acted in breach of his human rights or racially discriminated against him is manifestly unfounded.
If the reason for the difference in wording is that in Section 72 the Secretary of State has greater certainty because it is about matters occurring within his own department, whereas in Clause 81 the certificate is about events in a foreign country, the right of appeal should not have been removed and the opinions of the Secretary of State should be tested before an adjudicator. I beg to move.
The Minister of State, Home Office (Lord Falconer of Thoroton): We are not attracted to the idea of leaving out "in his opinion", as suggested. Clause 81, as drafted, makes it absolutely clear that the decision to certify, or not certify, is based on the Secretary of State's opinion. The Secretary of State cannot make a claim clearly unfounded just by certifying it. All he can do in a certificate is state "in his opinion" on the basis of the materials available to him that it is clearly unfounded. The subsection accurately reflects the position. Like all administrative actions, the issuing of a certificate based on the Secretary of State's opinion will be subject to judicial review in the courts. In the light of what I have said, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Avebury: I wish that the noble and learned Lord had addressed himself to the comparisons that I made with Section 72(2)(a) of the 1999 Act. In the absence of any reference to that section, I am still unable to understand the reason for the difference in certification of third country appeals which has taken place in the mind of the noble and learned Lord or his department since the 1999 Act. Perhaps on another occasion—not at five minutes past midnight—noble Lords will be grateful for an explanation of the reasons why the change has been made. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 197:
- Page 44, line 37, leave out "clearly" and insert "manifestly"
The noble Lord said: In moving Amendment No. 197, I shall speak also to Amendment No. 198. The amendments would reverse the Government's
proposal in the Bill to change the term "manifestly unfounded", which is the wording of the existing legislation to "clearly unfounded".There are serious consequences for an asylum claimant if the Secretary of State certifies that his claim is "manifestly unfounded" under the existing legislation or "clearly unfounded" under the proposals in the Bill, which involve the limitation of appeal rights.
It is therefore important for the Committee to determine what the effect in law would be of the change from "manifestly unfounded" to "clearly unfounded". The term "manifestly unfounded" has already been interpreted by the courts. There is case law on the issue going back a number of years. It is a term whose meaning is now generally understood. Indeed, its meaning was defined by the member states of the European Union in the 1992 London Resolution on manifestly unfounded applications for asylum, as claims which,
- "clearly raise no substantive issue under the Geneva Convention",
- "there is clearly no substance to the applicant's claim to fear persecution in his own country",
- "the claim is based on deliberate deception or is an abuse of asylum procedures".
Whatever the Government's assurances, it is the courts that will have to provide an interpretation of the legal meaning of "clearly unfounded". It would be quite open for them to conclude that Parliament intended that the term "clearly unfounded" should be given a different meaning from that of "manifestly unfounded", simply because it could well be argued before them—perhaps even by counsel for the Secretary of State—that if Parliament had not intended such an effect in law, then Parliament would not have parted from its decision in several previous Acts to use the word "manifestly".
I recognise that the Government's contention in another place was that the terms "clearly" and "manifestly" were synonymous and that they intend no change in the legal meaning of the term. No doubt the noble and learned Lord the Minister will repeat those arguments before the Committee today. The Minister might well intend to say that the courts could, under the rule of interpretation approved by your Lordships' House in the case of Pepper v Hart, use the statements made by the Minister in another place, and any he might make today, as an aid to the interpretation of the statute in this regard. However, it is important to note the limits of that doctrine, which applies only if the statutory provision in question is ambiguous, obscure or leading to absurdity. I am not sure that the expression "clearly unfounded" would fall within any of those definitions.
I take the Government's assurances about their intentions at face value, but I am by no means certain that they have considered in full the possible legal consequences of what they propose. Given the Government's attitude in another place, I anticipate that the noble and learned Lord the Minister will
indicate when he addresses the Committee that these amendments will not be accepted. I therefore give him the opportunity now to consider two alternative suggestions.First, if the term "clearly unfounded" is to be retained in the Bill, and if the Government's intention is indeed that "clearly unfounded" should have the same meaning in law as "manifestly unfounded", then the solution, in my submission, is to make that plain on the face of the Bill by providing, for the avoidance of doubt, that no change in the legal position is intended by Parliament.
If for some strange reason the noble and learned Lord is unable to accept even this benign suggestion, perhaps he will give the Committee an assurance that in all future proceedings counsel representing the Secretary of State will be instructed not to advance the contention that "clearly unfounded" should be construed by the courts as in any way having a meaning different from that of "manifestly unfounded". That again is what the Government say they intend. Will they go even this far in backing up that stated intention with such an assurance to the Committee today? I beg to move.
Lord Thomas of Gresford: I support this amendment. I see a difference in the English language between the words "clearly" and "manifestly". The word "clearly" implies a judgment; "manifestly" is what we used to call in judicial review proceedings something on the face of the record, which is obvious. We talk about what is on the face of a Bill, but on the face of the record is a concept that we all understand. Furthermore, the expression "manifestly", as the noble Lord, Lord Kingsland, said, has received judicial consideration.
I do not accept for a moment the suggestion that in this and in nothing else the Government are suddenly updating their language to introduce more modern expressions. I regard that explanation given in the other place as just ludicrous and unacceptable. I hope that we do not hear it from—
Lord Kingsland: Manifestly unacceptable.
Lord Thomas of Gresford: Manifestly unacceptable. I hope that we do not hear that from the noble and learned Lord. I am sure that we will not in the discussion today.
Lord Hylton: I support this pair of amendments because I fear that the effect of the Bill, as drafted, will be to lower the protection for applicants and thus reduce the standard of quality of the initial decisions. I have already discussed this with the noble and learned Lord's colleague. The standard is fairly low.
Lord Brooke of Sutton Mandeville: I have returned to the Chamber. I arrived just before midnight when the Liberal Democrats were complaining about opacity or opaqueness in terms of the language of the Bill. I am delighted to see that, having passed
midnight, we have moved into the sunny uplands of clarity. I am not a lawyer so I cannot contribute to the textual analysis which has been taking place.There is a passage in Robert Graves's Goodbye To All That where he sought to illustrate the quickness of mind of Lawrence of Arabia who was returning from London and being met by Graves in the Lodge at All Souls. Professor Edgeworth, the economist, who was also a Fellow of All Souls and much given to polysyllabic language, said to Lawrence as he came through the gates, "Was it caliginous in the metropolis today, Lawrence?" Lawrence, in the view of Graves and indeed myself, said with extreme quickness, "Somewhat caliginous, Edgeworth, but not altogether inspissated".
On these grades and shades of light and colour no doubt the Minister will shortly shed light. On the other side in terms of gradations of clarity, before sitting down I remind the Minister of Arthur Balfour's verdict on Asquith's lucidity of style of which he remarked that it was a positive disadvantage when he had nothing particular to say. Not being a lawyer, I look forward enormously to hearing what the Minister has to say. It is a very great pleasure, even after midnight, to have returned to the debate.
Next Section
Back to Table of Contents
Lords Hansard Home Page