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Lord Judd: After those two speeches, it would be rash for a layman to try to add any substance to the
argument which has been so well put. I want to make one observation. At Second Reading we spent a good deal of time discussing the Bill's motivation. Was it to ensure that all those who were entitled to asylum should receive it while those who were not would be dealt with firmly, fairly and decently? Or was it to portray a determination that as many people as possible should be sent home while of course we tried to fulfil our obligations to those who had a genuine case for asylum?This amendment goes to the heart of that debate. If we are concerned that all those who may have been through the most appalling experiences in their lives and who should be granted asylum can receive it, there should be no question whatever of curbing the normal well established practices in this country for appeal procedures.
Lord Brooke of Sutton Mandeville: I was struck early in the Committee stage by the catholicity and comprehensiveness of names which have been summoned and accrued behind that of the noble and learned Lord, Lord Archer, in support of the amendment.
It is 50 years or so since the Korean War. During that war, seven clergy of varying denominations were imprisoned by the North Koreans. They were placed in a single cell and given a single plank on which to sleep. The plank was sufficiently narrow that if they wished to turn they all had to turn together—a process which rapidly became known as the "ecumenical movement".
I regret that the names of the Liberal Democrats and the Cross-Benchers do not appear attached to the amendment but all members of my party know that we live in an imperfect world. The force of argument displayed by the two noble Lords on the Government Benches, the silent testimony of the Bishops Bench, along with the views of my noble and learned friend Lord Mayhew have been eloquent—I see that I have prevented the noble Earl, Lord Russell, from speaking, which he will do in a moment—mean that it is totally proper that, at twenty-five minutes before one in the morning, we should be discussing a matter as serious as this on behalf of those we are considering here.
Earl Russell: Our names have failed to appear on the amendment only for two reasons. First, only four names are allowed. Secondly, we felt that those who have put their names to it had a better claim than ours to be heard. They had much more new to say. Nevertheless, I should like to add a few words.
I am not particularly impressed with the view of the Secretary of State that a case is clearly unfounded. All day I have been looking for a quotation from Mr Justice Megarry, which disappeared when it came back from Hansard. I shall quote from memory:
- "We have all known cases which appeared to be open and shut, and were not. We have all known arguments which appeared to be unanswerable, and were not. We have all known determinations which appeared to be unshakeable, and were changed by argument".
I am also concerned about the selection of what I will describe as the cuckoo country; that is, the country to which the person is to be sent back. In my reading of the clause I have been a little less pessimistic than the noble and learned Lord, Lord Archer of Sandwell. I had supposed that it was not actually intended to send the person back to the country from which he had come. If it is, then it is rather like the procedure for ducking witches: the guilty witch floats and is safe; the innocent witch sinks and drowns. If the person's claim was genuine, he dies. If the person's claim was bogus, he can prosecute it.
If it is to be a third country, then I do not see why any country should volunteer to take on the role. Furthermore, the Government have taken no account of the fact that many countries generally regarded for good reasons as safe will not accept an asylum seeker into their process if he has entered illegally into their territory. I recall a case to that effect which we discussed at some length during our deliberations on the 1996 Bill, where the country concerned was Belgium, but I confess that at this distance of time I cannot remember the precise name and reference of the case.
What concerns me more is how all this is to be reconciled with the principles of natural justice which, according to Sir William Wade, have acquired almost the status of a fundamental right. I shall not enter into argument about whether in declaring a case to be clearly unfounded the Secretary of State is acting as judge and party in his own cause, but there is a line of precedence that would argue that he would not be so found. In my opinion that line of precedence is not absolutely certain, but it falls well within the balance of probability.
Where we do find that the procedure fails is in the maxim, audi alteram partem—"hear both sides". It is not to be presumed that the Secretary of State personally will have heard the applicant before he certifies the claim to be clearly unfounded. I am not at all certain how far a hearing from abroad, conducted in writing, can be construed as a proper hearing within the principles of natural justice. Sir William Wade discusses specifically the question whether a hearing in writing can be regarded as a hearing for the purposes of hearing both sides. He produces two cases, neither of which is quite to the Government's purpose.
One concerns the militant councillors in Liverpool who were held to have been lawfully judged without a hearing by the Appellate Committee of this House, because they had not requested a hearing. The other case concerns the procedure in planning started in 1986 which can be conducted without a personal hearing and in writing if the parties so agree. There is no precedent here for an argument that you can hear both sides in writing without the consent of the two sides.
There is also a problem that this principle of hearing both sides has entered into the law of the European Union. Again in the words of Sir William Wade, European Community law recognises,
- "the general rule that a person whose interests are perceptibly altered by a decision taken by a public authority must be given the opportunity to make his point of view known".
As to what a hearing by both sides actually means, in the words of Lord Denning,
- "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them".
There is no clear ruling on what happens when an Act of Parliament contradicts natural justice. I am in no hurry to produce one. Natural justice, of course, pre-dates Parliament itself, so it must have at some stage an authority independent of Parliament. In the words of Lord Russell—I am pleased that it was not me—
- "it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles".
That is the origin of the famous line of judgment, "Parliament cannot possibly have intended that". This legislation positively invites such a judgment. I hope that it will not get it.
Lord Hylton: I shall try to make some points relevant to the second amendment standing in the name of the noble and learned Lord, Lord Archer of Sandwell, and also to clause stand part. They concern late disclosure of torture.
It is becoming accepted that the initial interview may be experienced by some applicants as a form of interrogation. This in turn will trigger painful memories and counsel them to keep silent. Cultural factors also enter into the matter—for example, what is considered shameful or dishonouring in a particular culture. Even the presence of an interpreter of the same or similar ethnic origin may trigger acute suspicion and shame in the mind of the applicant and inhibit his or her full disclosure.
Lord Kingsland: The noble and learned Lord, Lord Archer of Sandwell, suggested that I speak to my Amendment No. 199 in this group. It seems sensible to do so. I can be very brief.
Lord Archer of Sandwell: I do not wish to discourage the noble Lord from doing so, but I suggested that we should discuss Amendment No. 199A. I certainly have no intention of discouraging the noble Lord.
Lord Kingsland: I thought that it was such a good idea of the noble and learned Lord that I would say a few words about it in any case.
It is clear that in some cases the finding by the Secretary of State that a claim is manifestly unfounded will be wrong. Our amendment seeks to ensure that those whose claims are certified as "manifestly" or "clearly" unfounded, and thus have to make their appeals from outside the United Kingdom, receive appropriate legal advice about the making of those appeals.
If such an appellant cannot be advised about the merits of his appeal, does not the right, in the opinion of the Minister, itself become a sham?
Perhaps I may ask the Minister with how many countries the Government have bilateral agreements to take non-suspensive appellants. In the light of that answer, when would he expect the clause in the terms expressed in the Bill to be implemented?
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