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Lord Thomas of Gresford: Can the noble and learned Lord inform us whether the Secretary of State takes the decision personally, or is he advised? Is he advised by people on the other side of the argument? The noble and learned Lord used the analogy of applying for an injunction on an ex parte basis. However, when one applies for an injunction on an ex parte basis, one does so to a judge who is totally independent. He can decide the issues. However, in the cases that we are discussing I very much suspect that the Secretary of State does not take the decision but rather his officials. How can that be just when the consequences are that the person concerned is sent back to the country from which he has fled?
I hope that the Committee will forgive me for saying that before the intervention in Afghanistan I was concerned by the case of the Afghan refugees who took a plane all the way to this country. How on earth can one say in those circumstances, "Sorry, you must go back to Afghanistan and then make an application and we shall see what we can do on that occasion"? The provision is manifestly unjust. I am amazed that the noble and learned Lord does not see it.
Lord Judd: Further to that point and before my noble and learned friend responds, I wish to pursue
what the noble Lord, Lord Thomas, said by means of the following observation. I am a layman, not a lawyer, and am totally perplexed. It is accepted that the Secretary State, having done his level best to make a sound decision, could conceivably still be wrong and therefore an appeal can take place. The anxiety being expressed is about how that appeal can be pursued. Does my noble and learned friend accept from somebody who spent most of his professional life outside the House—working, for example, with third world issues—that many in such situations have on more than one occasion been disturbed at how long it takes Whitehall to recognise the reality on the ground?We are expecting new arrivals in this country to take tests in citizenship and in what Britain is about at its best. Does my noble and learned friend further accept that one person sent back to face reality, which might be a nightmare, is one too many? Can my noble and learned friend be complacent at that prospect?
1 a.m.
Lord Falconer of Thoroton: The noble Lord, Lord Thomas, asked whether the decision will be made by the Secretary of State in person. Although that Minister will be responsible and accountable, he will not decide the matter in person. The matter will be decided by an official. Obviously the Secretary of State will ensure that such cases are carefully considered by trained staff and that any proposal to which the clause applies will be checked and approved by a senior caseworker before the decision is served—so two pairs of eyes, not just one. In addition, the Secretary of State will ensure that a proportion of cases are randomly quality checked after being decided—so there will be two pairs of eyes, plus an additional random check to ensure that cases have been dealt with properly.
In addition, my right honourable friend the Home Secretary indicated in another place that the country information used to assess applications will be audited for accuracy by an independent panel of assessors. In establishing the arrangements, my right honourable friend is as aware as members of this Committee of the consequences of getting a decision wrong. The noble Lord, Lord Judd, is obviously correct when he says that in a number of areas, Whitehall takes some time to catch up with reality. But a serious decision will be taken in each individual case.
I ask the Committee to consider whether there are cases in which applications are clearly unfounded and identifiable as such. We believe that there is such a category of cases. If that belief is correct then, subject to proper safeguards—I have set out the approach in broad terms—it is right that before an appeal is heard in a case that is clearly unfounded, the Government are entitled to say that the appeal should be made outside this country. That could be done either in a safe third country, which would not give rise to the problems to which noble Lords have referred, or in the country of origin. That is the basis for our defence of Clause 82, which we believe is sensible and has sufficient safeguards.
The noble and learned Lord, Lord Archer of Sandwell, issued a challenge in relation to ECHR compliance and to Article 13 in particular. If a claim is clearly unfounded, there is no breach of the convention's provisions.
Lord Archer of Sandwell: At the risk of being tiresome, has my noble and learned friend read the report of the Joint Committee on Human Rights which dealt specifically with this matter?
Lord Falconer of Thoroton: My answer is that if the claim is clearly unfounded—I stress that I use the phrase "clearly unfounded", not simply "unfounded"—no human right is being infringed in that regard.
In a powerful speech, the noble and learned Lord, Lord Mayhew, in effect said that that is not an effective remedy and he referred to a 1997 immigration case, which was to the effect that an application being made from abroad is not an effective remedy.
The noble Earl, Lord Russell, said, on the basis of Sir William Wade's book, that natural justice and the right to be heard involve a right to give evidence in some circumstances in person. We do not accept, in the context of a clearly unfounded claim, that an application being made from abroad is an empty or ineffective application. There are many applications of a non-asylum sort—for example, in relation to entry clearance—which have to be made from abroad and which cannot be made from this country. No one regards those rights of application or rights of appeal as empty rights or empty applications. As the noble Earl, Lord Russell, knows, the hearing to which Sir William Wade refers in his book does not necessarily involve the right to give evidence in person. It involves the right to be able to put one's case effectively to the person who must make the decision. We do not think that either of those rights is infringed.
Earl Russell: With respect, Sir William specifically discussed the question whether a hearing in writing was sufficient. He said that those were the only two cases that he could find.
Lord Falconer of Thoroton: I do not know the particular passage to which the noble Earl refers but I suspect that Sir William Wade was saying—I shall check—that it depends on the circumstances of the application. That is what Sir William is likely to have said on that issue.
I have dealt with the main points. This is a specific and important clause. It raises difficult issues but we believe that we have fairly wrestled with them in the clause. No Members of the Committee, including those on these Benches, wish to send people back when there is a real risk that they will then face persecution. That would not be a case in which their claim was clearly unfounded. It is only in those cases in which the claim is clearly unfounded that the procedure can apply.
I turn to two further points. In Amendment No. 199A, my noble and learned friend Lord Archer seeks to provide that an adjudicator can accept evidence in support of an application to which an appeal relates in order to establish a reasonable likelihood that the appellant has been tortured in a country to which it is proposed to remove him. The drafting of the amendment means that one is in effect saying that if the adjudicator who hears the appeal believes that there is a risk of torture, the person cannot be removed to another country. However, the problem with which one is wrestling involves the circumstances in which the person is removed before the adjudicator's decision. My noble and learned friend might have been saying, "Don't worry too much about the drafting; think about the principle". The principle is: if there is evidence that the person might face torture in the country to which he goes back, surely the "clearly unfounded" approach should not apply. It is difficult to imagine circumstances in which there is a risk of torture to the individual in his country of origin to which he will be sent which would be a "clearly unfounded claim". If the condition at which the amendment is aiming existed at the time at which the Secretary of State was hearing the case, it is difficult to believe that he could remotely conclude that it was "clearly unfounded". In a sense, what the amendment is aiming at is unnecessary.
The noble Lord, Lord Kingsland, discussed Amendment No. 199. I have no problem in that regard. In effect, he says that before "clearly unfounded" can be certified or the third party is safe—I am not sure—a certificate must be issued that the applicant has received independent legal advice and assistance in relation to the consideration and preparation of an appeal to be lodged from outside the United Kingdom. The effect of that, far from encouraging people to seek legal advice, would create a strong incentive for people to shun such advice. As the noble Lord will recognise, that would be the most direct and reliable way of securing a suspensive right of appeal; namely, an appeal that suspends the removal of the applicant from this country.
Those who sought advice would be able to gain an advantage by not mentioning that fact to the authorities, with the result that representatives would not be served with important documents, such as a notice of the date of an appeal hearing; some would be driven into the arms of unregistered advisers, who would be content to hide their involvement from the Home Office; and even reputable legal advisers may consider it in their clients' best interests to suspend their involvement in a case following the asylum interview, advising clients not to contact them until after a suspensive appeal had been safely lodged. All manner of confusion could flow from this proposed amendment.
We feel that the best solution is to encourage claimants to take the right kind of legal advice at an early stage. People going through the induction centres will be given guidance on that, as they will on the one-stop process. For others, there will be many sources of information—for example, the CAB will point them in
the right direction. The Home Office cannot force people to take legal advice. It can only encourage them to do so. It would be most unfortunate if our efforts were to be undermined by an amendment which we believe encourages them not to take legal advice.
Although I fully understand that this is a perfectly sensible amendment, it would probably have precisely the reverse effect of that which the noble Lord desires.
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