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Lord Filkin: Yes, my Lords, I agree that many asylum seekers have skills that could be harnessed through voluntary effort, either by giving voluntary support within legitimate parameters to other asylum seekers or by volunteering support within the community.
Lord Dholakia: My Lords, further to the question from the noble Baroness, Lady Greengross, I can well understand the Government's reluctance to connect an asylum seeker's need to work with managed migration. However, does the Minister agree that, as 70,000 applications are still pending decision, the considerable sum that NASS could save by operating such a policy would help considerably in reducing the administrative and taxation burden in this country?
Lord Filkin: My Lords, if I understand the noble Lord correctly, he is referring to the Government's recent decision. Previously, asylum seekers who had not had a decision on their application within six months were entitled to apply to the Home Office for an employment concession enabling them to work. As the noble Lord will be aware, given the considerable success in processing new applications—the vast majority of which are processed in substantially less than six months—the Government no longer see a need to give the employment concession in its previous form.
Business of the House: Standing Order 40
2.58 p.m.
Lord Williams of Mostyn: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 40 (Arrangement of the Order Paper) be suspended tomorrow to allow the Motion relating to financial assistance to opposition parties to be taken before the Copyright (Visually Impaired Persons) Bill.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House of Lords' Offices: Select Committee Report
The Chairman of Committees (Lord Tordoff): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Seventh Report from the Select Committee (HL Paper 154) be agreed to.—(The Chairman of Committees.)
On Question, Motion agreed to.
Following is the report referred to:
- 1. Freedom of Information: Publication Scheme
- The Committee approved a draft publication scheme, prepared under the Freedom of Information Act 2000, for submission to the Information Commissioner and publication thereafter. It will be fully reviewed before the statutory right of access to information comes into effect in January 2005. A copy of the draft publication scheme has been placed in the Library.
- 2. Audit Committee
- The Committee was informed of the decision of the Finance and Staff Sub-Committee to appoint an Audit Committee with the following terms of reference:
Dame Valerie Strachan (External Member)
Baroness Thornton: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Baroness Thornton.)
On Question, Motion agreed to.
Lord Filkin: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Filkin.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
Clause 83 [Appeal from outside United Kingdom: removal]:
Lord Filkin moved Amendment No. 199B:
On Question, amendment agreed to.
Clause 83, as amended, agreed to.
Clause 84 [Earlier right of appeal]:
Baroness Anelay of St Johns moved Amendment No. 200:
The noble Baroness said: In moving Amendment No. 200, I wish to speak also to Amendments Nos. 201 to 205 which are grouped with it.
Clause 84 gives the Home Office power, in taking immigration decisions, to certify that a person ought to have raised an issue by way of an earlier appeal. Such persons will have no right of appeal to an adjudicator against the decision.
An essentially legal process will be able to take place without the involvement of the judiciary. We believe that this is a blot on the principles behind this clause which we otherwise can support.
The clause means that a caseworker whose rank we do not know—it could be very junior—can make a decision and certify that an appeal cannot be made against it. Such a decision could be wholly contrary to the interests of the applicant. So a junior caseworker could make the decision then the certification and the appellant would never see a judicial person. Indeed, the Minister in another place, Beverley Hughes, accepted on 11th June in Commons Hansard at col. 823 that the situation "might, in theory, arise". How she could think that it might occur only in theory defeats me. Surely it will happen in practice too if the clause bites.
As my honourable friend Mr Malins said in another place,
If the Minister puts forward the view that the measure would take up more of the adjudicator's time, my further question has to be: what is wrong with that if it is a case of getting things right? Adjudicators are the right people for the job. At least the decision-making process would be fairer and more appropriate than it is under the provisions of this clause. If the Minister further puts forward the view that this would start to unravel the one-stop appeal process, I would have to beg to differ. I believe that it would still be effective and would have more force and integrity with the involvement of an adjudicator.
I turn briefly to Amendment No. 205. Although this does not overcome the fundamental objections which may be made to subsections (1) to (3), it places on the Secretary of State an obligation, subject only to reasonable belief rather than the need to be satisfied, not to deny rights of appeal unless a person has had access to competent legal advice. It is a minimum safeguard against the abuse of executive power. I beg to move.
Lord Goodhart: The grouping which includes the amendment just moved by the noble Baroness, Lady Anelay, also includes the Question whether Clause 84 should stand part of the Bill. We on these Benches believe that Clause 84 is a dangerous clause which is contrary to natural justice and ought to be removed altogether.
As the noble Baroness, Lady Anelay, has already mentioned, the main objection to the clause is that it gives the Secretary of State or the immigration officer the right to block appeals against their decisions or, in the case of the Secretary of State, those of members of his own department. The Secretary of State is not a judge and immigration officers are not judges. Therefore, if there is no appeal, there is no judicial process involved here except the possible judicial review of the certificate made by the Secretary of State or the immigration officer. In our view it is not desirable to have to rely on judicial review. However, if judicial review takes place, it is more likely to succeed in the case of a decision by an interested party than where the court reviews the decision of a judge such as an adjudicator. Therefore, we believe that the clause will be counter-productive in so far as it is likely to increase rather than diminish the number of cases in which judicial review applications will be brought and in which they will succeed.
Under subsection (1) of Clause 84 the question as to whether a person's motive for bringing an appeal on a new issue is proper or improper is much more appropriately decided by an independent person than by an executive authority such as the Home Secretary or an immigration officer. Under subsection (2) of Clause 84 the view as regards which issue should have been taken at an earlier stage is once again a matter for an independent adjudicator, not for an executive officer. Subsection (2) of Clause 84 is also defective in
Clause 84 caused considerable concern to the Joint Committee on Human Rights, which stated at paragraph 103 of its report:
The Government are concerned that the appeal system should not be open to manipulation. No doubt there are appeals which are brought without justification. But it is for the judicial body to which the appeals are brought, not the Executive, to decide which appeals are unjustified. A process which required the adjudicator to give leave to appeal in circumstances covered by Clause 84 might be acceptable. It might take up somewhat more time and cost, perhaps a little more than with the present situation. It is not certain that there would be a saving on judicial review. But even if there is some increase in time and cost, that is surely a price worth paying for protecting the basic principles of natural justice.
— To consider internal and external audit reports and other material, and to assess management responses thereto;
— To recommend to the Accounting Officer a suitable annual internal audit work programme and to monitor progress against the audit plan;
— To provide advice to the Accounting Officer in the exercise of his responsibilities;
— To evaluate the adequacy of the risk management system and the suitability of the control arrangements reported to it, and to advise the Management Board accordingly;
— To monitor value for money, good financial practice, appropriate internal controls, and effective governance throughout the administration of the House;
— To make an annual report to the House; to be submitted, in the first instance, to the House Committee and to be published with the House of Lords' Annual Report.The Members of the Audit Committee will be as follows:
Lord Alexander of Weedon (Chairman)
Lord Best
3. Management Board
The Committee was informed of the appointment of a Management Board, in accordance with the recommendations of the Fifth Report of the Offices Committee. The membership of the Board reflects the aims and objectives of the House of Lords' administration, with each member representing one of the following functions:
— Parliamentary services;
4. Membership of Sub-Committee
The Committee appointed Lord Grocott to the Administration and Works and Refreshment Sub-Committees in place of Lord Carter, and Baroness Goudie to the Finance and Staff Sub-Committee in place of Baroness Andrews.
2.59 p.m.
Page 45, line 22, at end insert "(except in a case to which section 82(5) applies)."
Page 45, line 25, leave out "the Secretary of State or an immigration officer" and insert "an adjudicator"
"There is a point of principle involved here: the taking of powers out of the hands of the judges and putting them into the hands of the state is something to be avoided whenever possible".—[Official Report, Commons, 11/06/02; col. 818.]
Can it be right that a junior caseworker can be judge and jury? Why should not the certification be made by an adjudicator rather than by the caseworker?
Caseworkers may be well trained and good at their job but they will not carry the same weight as someone who has judicial standing.
"When making a public authority the judge of the merits of the case against it, there is a real danger of compromising the independent scrutiny which lies at the heart of the values of the rule of law".
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