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Earl Russell: I want to add only a small footnote to what my noble friend Lord Goodhart and the Human Rights Committee have said. It is well known that there are certain things about which those who have suffered them find difficult to speak. It is commonly known in this Chamber that I once had a male pupil who was unjustly accused of rape and was acquitted. It is not so commonly known that on the same day a young woman came through my door who had been raped at knifepoint in a dark alley in Southwark. She was never able to bring herself to report it and I believe to this day has not done so. That does not mean that were she to tell anyone now there would be any reason whatever for disbelieving her. Refusing to believe a story told late is a very common way of denying justice.
Baroness Carnegy of Lour: I hope that the Government are paying attention to what Members of the Committee are saying with regard to the amendment, as I hope very much they paid great attention to the discussion late on Tuesday night of last week when an enormously important debate took place which, unfortunately, I could not attend.
The Government are absolutely right in their aspiration to try to speed up the handling of asylum seekers' cases. That is vital. However, it is equally important that the experience that asylum seekers have of this country, and the experience that the rest of us have in watching how the Government handle that matter, do not undermine our justice system, our sense of right and wrong and, indeed, our desire to keep in tune with the human rights convention. Therefore, I hope that the Government are paying much attention to the matter.
Lord Clinton-Davis: I hope, in following the noble Baroness, that my noble friend will understand that
cutting out the judiciary in the way proposed is not acceptable to many of us. I shall listen very carefully to the argument that he adduces. I make it plain, and I believe that he will admit, that the onus rests heavily on the Government. My current view is that to cut out the judicial approach to the asylum seeker who seeks it is entirely wrong. It is not that I feel that the judiciary is somehow superior; it does not claim that. It claims that it will listen very carefully to the legal arguments that are presented before it before making a decision. I do not think, with respect, that the executive officers or the Secretary of State can in any way be a substitute for the judicial approach. At the moment I favour the noble Baroness's amendment.
Lord Brooke of Sutton Mandeville: By chance, Mr H.F. Ellis will be commemorated in a broadcast on Radio 4 tomorrow morning at, I believe, 11.30. He was a freelance journalist who made his living lightheartedly over many years, and he died recently. I invited him 37 or 38 years ago to address a business dinner. He confessed, when he spoke—it was at Christmas-time—that he was not sure why he had been invited until he had worked out that he was in the same business as those who were present: of seeking to sell articles for more than they were genuinely worth. He explained that his bank had just written to him to reveal that, having long since removed his money from the branch where he kept his account, it was now going to remove the account as well. He said, "You do begin to wonder why they have a branch system at all if neither the money nor the account is there".
Banks have their own responsibilities towards their customers and have to convince them that what they are doing is sensible. In this regard, we are talking about the rights of asylum seekers and the slight casualness in that regard. We are long since used to the Secretary of State being the subject of sentence after sentence in such legislation, although we all know that decisions are taken at a level below that of the Secretary of State; nevertheless, the reference is to the Secretary of State. That provision is now being widened in the clause. As my noble friend said when she moved the amendment, there is a view on these Benches that more precision and balance should be maintained and that the judicial process should not be eliminated altogether.
3.15 p.m.
The Minister of State, Home Office (Lord Falconer of Thoroton): This is an important clause. In effect, Clause 84 builds on the one-stop system that was introduced in 1999. That one-stop system in effect requires that where there was an opportunity to appeal, the asylum seeker should raise all the points of appeal at that one appeal and that they should not be dealt with bit by bit. We believe that our approach is sensible. However, in view of what the noble Baroness, Lady Carnegy, in particular said, I should deal with the matter at some length and explain in detail the reasons for our approach. I also make it absolutely clear that we are listening very carefully to what has been said in particular in the debate that was referred
to earlier; I was present at that important debate, at which a large number of important points were made, albeit late at night, but none the worse for that.I ask Members of the Committee to consider seriously what the result would be if Clause 84 were not agreed to or if the adjudicator's role were inserted to it, as the amendments propose. The one-stop system, which was introduced in 1999, has been a success. It helps the IND to consider all aspects of a case more efficiently. It gives those with a case the chance to put forward at an early stage the whole of that case and to have an earlier decision, and it stops those who put forward late claims from preventing the reasonable implementation of an asylum decision. It stops no one from having a right of appeal and a right of appeal to a judicial officer. It stops no one from claiming asylum or putting forward human rights grounds. It simply stops them from successfully delaying or evading a removal, the reasons for which they had an earlier chance to dispute and to do so before a judicial figure. Consider how much more efficient and fair it is to deal with all points of appeal at one go.
In the calendar year 2001, there were nearly 88,000 asylum refusals, nearly 43,000 appeals during that year and nearly 34,500 appeals were dismissed. There is no reason why those dismissed cases should have another chance to appeal. However, there is also no reason why those who did not appeal should have another chance to appeal later. Our proposed arrangements will stop that.
There were another 45,000 asylum cases that had the chance to appeal but that was not done. That is a possible 80,000 abuse of appeals that we could prevent. There would be more if there were no one-stop system and people could appeal again and again. That involves merely the asylum cases.
Earl Russell: Does the noble and learned Lord understand that justice was not meant to be convenient for the executive?
Lord Falconer of Thoroton: The noble Earl would be the first to agree that there has to be an end to litigation at some stage. An end to litigation requires a fair opportunity to put the point of view or the grounds of appeal. However, if that ground of appeal is not pursued or if it is pursued, heard and rejected, justice becomes clogged up if again and again people have the right to put again arguments that they had had the opportunity to put or which they had already put. A balance has to be struck. That is what the 1999 legislation sought to do. I shall come in a moment to the views of the courts in that regard. There have been a number of judicial reviews.
We have to look at the clause in the context of what is currently happening before we can seriously consider the proposed amendments. Clause 84, as I said, simply builds on existing legislation. This is the position. The 1999 Act introduced the one-stop procedure. The intention is that we will deal with all the applicant's issues quickly and at once instead of bit by bit. That benefits those who do qualify to stay here and gives a quicker final answer to those who think
that they qualify to stay here but who do not. In particular, it helps to dispose of those cases where previously a hopeless application was strung out and last-minute claims were made to prevent a perfectly legitimate removal. It also reduces administration costs, support costs and legal costs. I am sure that no Members of the Committee would suggest that that is an irrational or unfair way of doing things.
Lord Clinton-Davis: I seek some information from my noble and learned friend. Have any of the cases that were heard again succeeded? If so, why have they succeeded and what is their proportion of the whole?
Lord Falconer of Thoroton: As I said, 43,000 cases were appealed and 34,500 had their appeals dismissed. In relation to those caught by the 1999 one-stop shop, 700 late claims were certified as ones in relation to which there could not be a appeal and three applications were made for judicial review, two of which were refused permission on the papers and one of which was refused after an oral hearing. The position under the 1999 Act is that 700 people were denied the right to make an appeal again. Three applied for judicial review and all the applications for judicial review were refused at the leave stage, either on paper or after an oral hearing. Therefore, it appears that the system is not unsuccessful.
As I said, the 1999 Act set up a system which, in effect, allowed the prevention of repeated appeals. Some applicants, and nearly all those lodging an appeal in-country, are required by Sections 74 and 75 to disclose their full grounds for remaining here. They are given a formal notice which warns them that, if they raise a matter later which they should have raised at that point, they may not be able to appeal on that particular ground. Therefore, applicants are being told that they must raise all their grounds for appeal.
Section 73 applies if an appeal is dismissed. We notify the failed asylum seeker that he is to be removed following dismissal of his appeal and set up arrangements with the carrier. At the last minute, he may claim that he should not be removed because he has a long-standing relationship with someone living here. We would then consider that claim fairly on its merits but, if the claimed relationship was not mentioned earlier to us or to the independent adjudicator, we would ask ourselves why. If we decided that the claim was to be refused, if it appeared to the Home Office that the claim was made to delay a legitimate removal and if the Home Office could discern no legitimate purpose in making it, then it might certify the case so that the refusal did not attract a right of appeal.
Certification does not have to take place. It is discretionary and subject to judicial review, as is the decision to refuse the claim. Therefore, decisions that are made must be reasonable. But all that takes place after the asylum seeker has had the opportunity to put forward all his grounds to the adjudicator as to why he should stay and after a warning has been given that all the grounds must be put forward. From the way that
the system works, it is also plain that if there appears to be something in the grounds put after the opportunity for appeal and if it does not appear that it is simply a reason to delay, then no certificate will be given preventing the further appeal. Is that a sensible system? Is it one that deprives the applicant of the opportunity to put—
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