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Lord Dholakia: Amendments Nos. 207A, 207B and 209ZA have the support of these Benches. I shall speak to Amendment No. 207A and 207B, and shall leave the noble and learned Lord, Lord Mayhew of Twysden, to speak to his amendment. I am sure that my noble friend Lord Russell will want to say a few words on that a little later. I found the introduction of the noble Lord, Lord Joffe, most moving, especially the mention of his own perception about the precise impact of such clauses in the Immigration and Asylum Bill. If there are already good practices in place that we have adopted so far, I believe that it would be dangerous to remove such practices by way of this legislation. The impact of what the Government propose to do under this clause is to remove some of those good practices.
There are some very interesting examples of the way that tribunals and adjudicators perform their very important tasks. It is well established that it is their duty to ascertain whether a person fulfils the criteria of the relevant immigration rules. Obviously, in the back of the Government's mind there must be the feeling that there may be a danger of floodgates opening as regards the present situation. But it is very clear that the requirement to obtain permission to appeal to the tribunal by way of a paper application means that there is an effective mechanism of sifting out wholly unmeritorious cases.
It is currently reasonably difficult to obtain leave to appeal solely on a factual issue. The tribunal should be trusted to exercise its factual jurisdiction responsibly. At present, both practice and principle determine that the tribunal may reverse an adjudicator's findings of fact, but will give the greatest weight to factual findings that are based on oral evidence heard by the adjudicator. Thus, the tribunal does not represent simply another bite of the cherry.
There is also another reason. Adjudicators have different levels of knowledge about immigration law and practice. Some part-time adjudicators sit only on a minority of court days. By contrast, the current batch of full-time tribunal chairmen is highly experienced in immigration and asylum matters and can bring great skill to factual issues.
In relation to Amendment No. 207B, perhaps I may just say that I have a good deal of sympathy with the inclusion in this grouping of Amendments Nos. 208A and 208B, to which the noble and learned Lord has just spoken. The purpose of our amendment is to remove the proposed statutory bar to a right to an oral hearing in a higher court and retain the right to apply for a judicial review. The right to an oral hearing in a higher court is central to justice in this country. Without it, the decisions of the IAT will not be subjected to the
"most anxious scrutiny". The noble Lord, Lord Joffe, was right to quote the Bowman report in relation to this matter.I was delighted earlier to see the noble Lord, Lord Mishcon, in his place in the Chamber. I was able to tell him that I intended to use one of the quotes given to me by ILPA. During the passage of the Administration of Justice Act 1985 through Parliament, the noble Lord, Lord Mishcon, observed that,
The Lord Bishop of Southwark: The right reverend Prelate the Bishop of Derby, who has attached his name of Amendment No. 208A, has been prevented through other duties from being present in this Chamber today. Therefore, from these Benches, I rise to support the modest amendments of the noble and learned Lord, Lord Archer of Sandwell, Amendments Nos. 208A and 208B.
The right to an oral hearing in a higher court is central to justice in this country; without it, the decisions of the Immigration Appeal Tribunal will not be subjected to the "most anxious scrutiny", which is to be expected in human rights decision making. The proposal that a review would be determined by a single judge on the papers of the case, with no oral review or appeal to the Court of Appeal, would mean that the adjudicator, who might often be a lay person, would be the only person to hear an oral argument about the law.
This proposal will make asylum, human rights and immigration appeals unique among statutory appeal procedures in providing no scope for an oral hearing before a High Court judge before the case is finally disposed of. It is recognised that the Government's purpose is to avoid delays in processing appeals, but it seems that the price being paid in terms of well-tried legal safeguards is just too great.
Lord Clinton-Davis: I support the remarks of my noble and learned friend Lord Archer. The noble Lord, Lord Joffe, has put a powerful case. I personally think that the issue has been slightly exaggerated. I do not believe that the proposed legislation is in all its aspects comparable to apartheid. However, the noble Lord speaks from knowledge. From that point of view, although I hesitate to agree with everything that he has said, I want to take on board that warning.
It is highly wrong that oral argument should be removed from the judges altogether. With respect, I do not believe that putting documents before them can be any substitute, particularly where cases have established that oral argument is advantageous.
The question of whether or not the case is comparable to apartheid does not remove the argument that the case put forward by the Government, which I generally support, is wholly wrong in this regard. I simply cannot see that oral argument has to be viewed with such suspicion. My noble friend the Minister is an eloquent advocate, and is someone whom we all respect. I do not believe that she would put forward that point of view beforehand. But that is not wholly relevant either. The onus of establishing that oral argument is irrelevant here rests fairly and squarely on her. With respect, I do not think that she will be able to discharge that. I may be surprised by her eloquence, but at the moment I do not think so.
My noble and learned friend has said that, as a fallback, we should consider his Amendment No. 208B, in which he has been supported by the right reverend Prelate the Bishop of Southwark. I do not believe that it is a wholly good thing to revert to that issue. It should be done only under some duress.
However, a powerful case has been made out for ensuring that the Government think again about this matter. It is not a slight issue. It is not something that those of us on these Benches who generally support the Government will easily forget. I beg the Government to think again about this issue. It is highly important. We should take on board the arguments that have been adduced so far, both by the noble Lord, Lord Joffe, and by my noble and learned friend Lord Archer.
It is no light thing to surrender the right of oral submissions. Those peopleand there will be manywho will be the victims of that proposition will hold in their minds the idea that the Government have let them downand I do not want them to say that.
Lord Judd: I am sure that my noble friends on the Front Bench will take extremely seriously the points made in the debates on these amendments. My noble and learned friend Lord Archer speaks with great authority, not only as a distinguished lawyer but as someone who has carried high legal office in government. The fact that he has put the case so tellingly cannot be lightly dismissed.
The noble Lord, Lord Joffe, speaks with a different kind of authoritythat of a human rights lawyer who was in the front line of the battle for justice in South Africa. I understand that he was indeed the instructing solicitor for the defence in the Mandela trial. When someone with that background says what he has said in the course of our deliberations, it cannot be lightly cast aside.
My good and noble friend Lord Clinton-Davis says that he believes that the case is slightly exaggerated and that there is no comparison with apartheid. I do not think that the noble Lord, Lord Joffe, was making an absolute comparison with apartheid. He was saying that as he saw the rights of a particular group of people resident in Britain stripped away one by one as compared with the rights of everyone else, it reminded
him of some of the characteristics of society in South Africa when he was battling for justice as a human rights lawyer.This is the anxiety that a number of us have. With good administrative intentionnot with the kind of evil objectives that those behind apartheid hadmy noble friends may end up by producing a system which can be compared with apartheid rather than one that can be compared with the highest principles of British justice.
I make no apology for making the point again that I made in the debate the other evening. I find this slightly bizarre when we are beginning to introduce examinations for those who want citizenship in Britain to make sure that they understand what is good and decent about Britain. I should have said that for most people in that situation, the rule of law and justice are crucial.
Perhaps I may make two specific points and a general one. First, as a layman, it is absolutely clear to me when I look at the judicial system that a deliberation on written evidence cannot be compared in quality with a deliberation on evidence that is both written and oral. It is self-evident that it cannot be of the same quality, depth, care or integrity.
Secondly, it is very important that the credibility of the appellant can be tested, examined and seen, and that those making the assessment are able to see the response of the appellant to the examination as it goes forward. For that not to happen is very disturbing. For those reasons, these matters need to be taken extremely seriously.
My general point relates to a supplementary question that I asked at Question Time last week. I asked my noble friend the Minister whether one of the principal objectives that must concern us all was that everyone who had a valid case for asylum should be accorded asylum and that that was how we shall be judged in history. I was a bit disappointed by my noble friend's response. He said that of course that was an objective, but another objective was to have a decent, firm, fair system of law being well administered. Those are not contradictory. Both are essential.
My noble friend the Minister and his colleagues have been doing an outstandingly good job on the technical, administrative level in how they have taken the Bill through the House. There is not one of us who would not commend them on their patience and the detail and manner of their argument, all of which have been impressive and will make their mark. However, I am looking for an overriding commitment to justice from the Government. That is what they will be judged by above all. As we have said before, these people may have been through hell. Taking away from them rights that the rest of us take for granted in other dimensions of British life is the beginning of the erosion of the commitment to justice. I believe that that is what led the noble Lord, Lord Joffe, to say what he said in his opening remarks.
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