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Lord Falconer of Thoroton: It is the view of parliamentary counsel that "clearly" and "manifestly" mean the same. It is a view to which we accord the greatest of respect. I confirm that we will not argue that "clearly" means anything different from "manifestly". That gives the noble Lord, Lord Kingsland, the assurance that he seeks. It is the view of parliamentary counsel that "clearly" is a clearer word than "manifestly", a view that I share. Our commitment to treat "clearly" the same as "manifestly" is unswerving. I think that that helps.
We have spent 10 most interesting and exciting minutes identifying that the law has not changed one jot. It is of great importance that we emphasise that. For the moment, we intend to stick with the word "clearly". I hope that the assurance that I have given reassures the noble Lord, Lord Kingsland. I assure the noble Lord, Lord Hylton, that the level of protection is no less than it was when the test was "manifest".
Lord Avebury: Could not the noble and learned Lord solve the problem by including an additional paragraph stating that, in this section, "clearly" means "manifestly"?
Lord Falconer of Thoroton: It is hard to imagine a more unnecessary and pompous way to deal with the matter or a greater unnecessary lengthening of a statute—in the light of the clear assurances given by my honourable friend in another place, repeated in this House and coupled with the assurance given to the noble Lord, Lord Kingsland.
Lord Kingsland: I rise to celebrate a rare victory. In those circumstances, I am compelled to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 82 [Appeal from within United Kingdom: unfounded human rights or asylum claim]:
Lord Filkin moved Amendment No. 197ZA:
- Page 44, line 41, leave out "either or both of the grounds specified in section 80(4)(a) and (b)." and insert "the ground specified in section 80(4)(a)."
On Question, amendment agreed to.
Lord Archer of Sandwell moved Amendment No. 197A:
The noble and learned Lord said: With this amendment, it may be for your Lordships' convenience if I speak also to Amendment No. 199A.
I have not previously engaged in debate on the Bill—either on Second Reading, when I was unable to be present, or, save for two brief interventions, in Committee. I am well aware of the backlog and other problems that the Government seek to address. I do not quarrel with the overall purpose of the Bill.
Notwithstanding that, I beg your Lordships' indulgence now, because there are questions—which are not linguistic—raised by Clause 82 that have given rise to great anxiety not only on my part but on the part of a wide spectrum of non-governmental associations that command universal respect. They were listed a few moments ago during a previous debate by the noble Lord, Lord Hylton, so I shall not repeat them.
That anxiety is not diminished by the fact that, as the noble Lord, Lord Avebury, pointed out earlier, this part of the Bill was introduced in another place so late that there was no opportunity to debate it. Not only does it fall to your Lordships' Committee to scrutinise it for the first time, at a somewhat belated hour; it raises questions as to how it came about that a Bill that contains a considered scheme of measures to address the issues arising was considered, drafted and introduced with no apparent suggestion of any intention to include the measures now included in Part 5. They appear to have been a complete afterthought.
I hope that, when my noble and learned friend replies, he will explain to the Committee what triggered this intrusive package of proposals at so late a stage. I am grateful to the noble Lords who have added their names to the amendment, and I apologise to the Committee that this is not a matter that can properly be dealt with as briefly as have some matters during earlier debates.
Clause 82 reads as though its intention were to breach as many constitutional principles of democratic government as can be crammed into 65 lines of print. First, it would remove the right of appeal to the judiciary against an executive decision. Clause 70 provides a right of appeal to an adjudicator against an immigration decision, as defined in that clause. That is what we would expect, as a matter of course, in any democratic system of government. Decisions of the executive ought to be subject to scrutiny by the judiciary. Where possible, a specific channel of appeal should be prescribed; the matter should not be left to
judicial review. That has applied to immigration decisions in the past, but now there is to be a category of immigration decision in respect of which that right is no longer available. The judiciary will not monitor the executive; the executive is not to be accountable.It is true that the appeal is not to be removed in all circumstances and for all purposes, but that brings us to a further infringement of a principle of democratic government. Not only should the judiciary be empowered to scrutinise the actions of the executive but that scrutiny should be effective, not an empty shell. Under the Bill, the applicant may still appeal, but only after he has been removed from the country, either to his country of origin or to some intermediate country at the executive's choice.
We are considering asylum: what is the point of discussing whether someone should be granted the right of asylum after he has been returned to the country from which he seeks asylum? If the appeal were concluded in his favour, would a writ of habeas corpus be dispatched to his persecutors, saying, "Please send him back to the United Kingdom"? If he is dead, what is the point of establishing his right? If he is being tortured, how can that be undone by saying that he may now come back to the United Kingdom?
Subsection (4) seeks to don a mantle of compassion by providing, in effect, that the claimant shall be removed to a country that can be relied upon not to kill or imprison him for any of the reasons set out in the clause and not to send him on to a country in which he would be at risk. However, that matter lies in the judgment of the executive, and, as I understand it, there is no appeal against that judgment. Once the claimant has passed out of the jurisdiction of the United Kingdom, we have no control over what happens to him. The fact that we are discussing an appeal presupposes the fact that the claimant may be able to establish a right to asylum by showing that he would be at risk of death or torture in his own country.
The third principle breached by the clause is that a person involved in proceedings should be free to present his case to those who adjudicate. Anyone who has tried to conduct proceedings in this country from a European country knows how difficult it is when everything must be done by post or e-mail and his legal advisers cannot have a proper discussion with him. We should imagine the difficulties for someone conducting an appeal from Afghanistan or the Sudan. Will the authorities that have been persecuting the claimant stand idly by while he attempts the exercise? The right of appeal would be a charade.
We have not yet exhausted the list of infringements of basic principles. It is fundamental to any legal proceedings that the right of one party to participate in them should not depend on the grace and favour of the other party. What will trigger the deprivation of that right for the appellant? As was pointed out, it is to be a certificate from the Home Secretary saying that the application is clearly unfounded. That is the very question that the adjudicator is likely to have to determine. One party to the proceedings will be given the power to decide that the other party has no case and should not be permitted to proceed.
Even that is not the full extent of the problem of providing a fair hearing with a just outcome. In asylum cases, above all others, the outcome may—usually does—depend on the assessment by the adjudicator of the applicant's evidence and of the reliance that he can place on it. That judgment must depend to a substantial degree on seeing and hearing the witness. It is rarely a judgment that can be made from a sheet of paper. The adjudicator will not be given a fair opportunity to assess the vital evidence.
How many basic principles can be brought into contempt in 65 lines? The debate in another place was precluded, so we have not heard the Government's arguments on this provision. No doubt my noble and learned friend will explain the need to decide those questions expeditiously. I wholly agree; I have been urging that since I was privileged to chair the Council on Tribunals. Of course, the shortest way in which to achieve expedition is to abolish appeals altogether, but we are concerned not only with expedition but with according justice expeditiously, so that would not be achieved by not according justice.
A possible safeguard for claimants that remains in the Bill is the possibility of seeking judicial review of the Home Secretary's certificate. I was grateful to my noble and learned friend for confirming in a previous debate that that has not been excluded by something that we had not noticed. I hope that I shall not sound churlish when I say that that is scarcely an occasion for rejoicing. The Council on Tribunals has said repeatedly that judicial review is not a substitute for a specific right of appeal because it relates only to the procedure adopted and the Wednesbury criterion, as the noble Lord, Lord Thomas, said.
In any event, it appears to be self-defeating. If the purpose of the whole miserable exercise is to expedite the examination of claims for asylum, that is not likely to be achieved by encouraging a flood of applications for judicial review. I hope that my noble and learned friend will confirm that the remedy is expected to be used and that it will be available without let or hindrance. I wonder whether it is an unworthy thought to say that that remedy was perhaps left untouched because it was hoped to head off a challenge under Article 13 of the European Convention on Human Rights, which is the right to an effective remedy in domestic law.
The Joint Committee on Human Rights drew timely attention to that in paragraphs 97 and 98 of its 17th report. It said that if the applicant has been removed before that application can be made, it would not satisfy the requirements of the article. If the Government propose to ignore what is said in that report, no doubt we shall be told, but if, as I expect, they intend to pay heed to it, perhaps my noble and learned friend will explain how they will answer a complaint under the convention.
Time is passing but as the amendment is grouped with my Amendment No. 199A, perhaps I can say a word about it. I am grateful again to my noble friend Lord Judd for adding his name to it. It is an alternative
to Amendment No. 197A. In the unlikely event of my noble friend resisting Amendment No. 197A, this amendment represents a fall-back position.Whatever the general principle, I hope that it will not be disputed that to be returned without the possibility of an appeal is not a fate that should be forced on someone who has already been subjected to torture in the country to which it is proposed to remove him. That raises the question who decides whether, according to the evidence available, the person is being subjected to torture. My answer would be that an adjudicator should decide on a balance of probability. It has been suggested that the amendment might have been drafted more clearly. If my noble and learned friend accepts the principle, I promise not to make trouble about the draftsmanship, which can be considered at a later stage.
I am troubled about having a certificate that the application is clearly unfounded because the matter may not rest simply on the fact that the applicant did not say it sooner. That matter was discussed at some length earlier by the noble Earl, Lord Russell. I shall not repeat the arguments, but there is a great deal of evidence that there are all kinds of reasons why someone does not disclose torture at the first opportunity.
This is not a debate about text-book principles. As my noble friend Lord Judd said in an earlier debate, the principles are there to protect human beings and what we are discussing is human lives. I hope that it will be apparent to anyone reading the report of the debate that we are not playing word games and we are not moving pieces on a chess board. We are discussing whether people are at risk of torture and death, and their fate may be in our hands. I beg to move.
12.30 a.m.
Lord Mayhew of Twysden: The noble and learned Lord, Lord Archer of Sandwell, had no need to apologise at the outset of his remarks for taking longer than he would have wished at this hour of the evening. For my part, I should need to apologise if I were to take time seeking to improve upon what the noble and learned Lord said or to put any kind of gloss on it. I agreed with every word I heard him say. I add only that I have never in either House heard a more shattering condemnation of a proposal of any government delivered from behind the Treasury Bench from a source commanding such respect as does the noble and learned Lord.
As we have been reminded by the Immigration Law Practitioners' Association, the courts have made it clear that a right of appeal post-removal is valueless. It cites the 1997 Immigration Appeals Report case of Canbolat v Secretary of State for the Home Department. I hope that as the Government precipitately included the proposal in the other House without debate, they will as precipitately withdraw or abandon it.
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