| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
The Countess of Mar: I am sorry that I am not able to support my noble friend Lord Joffe. I remind the
Committee of my interest as a member of the Immigration Appeal Tribunal. I cannot support Amendment No. 207A because I understand that it is a requirement of the law that the adjudicator considers the facts. Wiping out,
- "on a point of law"
The noble and learned Lord, Lord Archer, pointed out clearly that Amendment No. 207B appears to take away the right of an appellant to appeal against the tribunal's decision to refuse an appeal. The only appeal then is to the High Court. We need that. I also agree that we need to be able to make oral submissions, as the noble and learned Lord made very clear.
I mentioned the other night, at heaven knows what hour of the morning, that there is a huge backlog of work in the Immigration Service. People making decisions cannot be expected to make the right decision every time. In case a wrong decision is made, we ought to give the appellants every opportunity to appeal. Quite often, they will not go on appealing if their case is flimsy. I often see flimsy cases and wonder how they have the guts to appeal, but never mind, that is beside the point. I do my best to consider each case on its merits. I would like to see each case being allowed to be considered on its merits.
5.15 p.m.
Lord Mayhew of Twysden: It was moving to hear the speech of the noble Lord, Lord Joffe. I apologise to him for having missed his first few sentences. I did not hear him allude to similarities with apartheid. From anybody else I should have thought that that was possibly slightly overstating the case, but from him all of us in the Committee have to take it extremely seriously, for reasons that have already been alluded to.
I referred previously to the inherent dislike of all governments of judicial review. The vehemence of the protests of the executive at judicial review from time to time makes the case for its value and for preserving it undiminished. I shall speak to my Amendment No. 209ZA. I can omit a lot of what I intended to say because of what has been said already. The record on judicial review of adjudications by the IAT is very persuasive. Almost twice as many cases are allowed as are disallowed. Much of the briefing that has been so helpfully provided tells us that since January this year the High Court has granted permission for judicial review of the tribunal on 62 occasions—29 on perusal of the papers only and 33 on oral hearing after the original application on the papers has been refused.
Now, in place of the full range of judicial review, the Bill substitutes application in the form of a statutory review to the High Court with a review on point of law only and limits the applicant to written submissions only. That is where my amendment comes in. I endorse
everything that has been said about the importance of oral hearings, especially in the context of the life and liberty of an applicant.If the Bill had been in force, over half of those found to have an arguable case would have lost their right of challenge, even though the case would have been granted had it been heard, because of the provisions in Clause 89(3)(a) for written submissions only.
That is bad enough, but Clause 89(4) empowers the Lord Chancellor, by order, to repeal even that. The noble Lord, Lord Joffe, has referred to the Select Committee on Delegated Powers and Regulatory Reform. It is worth reminding ourselves of that committee's comments:
- "The Committee is puzzled by the argument that if a right of appeal is too popular it should be ended. Unless the Minister persuades the House that there is a better case for retaining this power, the Committee suggests that subsection (4) should be omitted".
The Government's case appears on page 26 of the report in the memorandum provided to the committee by the Home Office. Paragraph 122 reads:
- "Subsection (4) has been introduced as a safeguard to ensure the Government can take swift, effective action if the new statutory review process is not working as it should".
- "If the number of applications for review exceeds those anticipated the advantages of a review to the High Court will be lost but it may be necessary to take swift action to prevent the High Court being overwhelmed".
- "not working as it should"?
No evidence has been given of which I am aware that the High Court has been overwhelmed so far. If it is the Home Office which has found the number of cases to be tiresome, it ought either to improve the manner in which the matters are dealt with at first instance or find a better administrative way of dealing with them internally. One might suppose that that is what the Government would wish to do—take steps to improve the quality of the original decisions—rather than to curtail opportunities to have them allowed by a High Court judge.
Under subsection (4), even this limited indulgence can be repealed by the Lord Chancellor by order. That would leave no right of appeal from the IAT because, presumably, the Government will seek to ensure by further legislation that no judicial review is allowed at
all. I should like to know whether that is what is actually envisaged. It would be very helpful to know from the Minister what truly are the circumstances in which the Government envisage that the Lord Chancellor may by order seek to remove even that which is allowed in Clause 89.I have to make this comment. So far, the Government's attitude seems to give rise to the perception that they are saying, "There are far too many of these purported asylum seekers. We wish to deny them an oral hearing because that will speed up the determination of their cases and their ultimate removal". The Government concede, "Certainly some would succeed if there were an oral presentation of their renewed application", but they would have to concede that by reason of the statistics cited. However, it appears to be the Government's attitude that you cannot win them all. That is profoundly unjust in my view. It is also inexpedient because it feeds a popular and very lamentable feeling that all these asylum seekers are dishonest and really ought to be removed anyway.
What the Government are doing in this clause is to give half a loaf where there should be a loaf. In subsection (4), they are reserving to themselves the right to say, "If there are too many hungry people forming a tiresomely numerous queue for their half a loaf, then we'll deal with that by taking away the right even to half a loaf". That is an unattractive attitude. I shall be very glad either to hear how the Government can justify it or to hear them disavow it.
Baroness Carnegy of Lour: In speaking to Amendment No. 209ZA, my noble friend Lord Mayhew suggested that subsection (4) should be removed. I should like to ask the Minister how subsection (4) will relate to Scotland should that subsection and indeed the rest of the clause stand as currently printed. In the next group of amendments—in Amendment No. 208, I think—the Government are acknowledging that, under subsection (2) of Clause 89, an asylum seeker in Scotland would appeal to the Court of Session rather than to the High Court for review of the tribunal's decision. That is my understanding of Amendment No. 208. Once that change is made in the Bill, could the Lord Chancellor by order, under subsection (4), repeal subsections (2) and (3) in relation to the Court of Session in Scotland? It may well be that he can, because I believe that his writ does run when it comes to these tribunals. I may be wrong about that. I am not a lawyer; I am simply trying to follow the logic of this.
It seems rather strange that it is the Lord Chancellor who will assess whether the Court of Session is overburdened with appeals, and therefore whether subsections (2) and (3) have to be repealed. Or, rather, is the point that, as this Bill is a UK Bill, if the High Court is ever overburdened, there will be no appeals to the Court of Session either? I hope that the Minister understands my perhaps rather ill- expressed question.
However, there does seem to be a question. We need to know how subsection (4) will operate in relation to the Court of Session in Scotland.
Earl Russell: I should like to congratulate the noble Baroness, Lady Carnegy of Lour. One such accident might happen to any government, but two savours of carelessness. It does seem that the Government have not entirely taken on board thinking in a devolutionary manner. Although I think that that was to be expected, devolution has been going for a little while now and it is time that we got on with it.
I rise to second the amendment of the noble and learned Lord, Lord Mayhew of Twysden, to which I put my name. He said so much that I shall add very little. I was taught my suspicion of the Henry VIII clause by his colleague the late Lord Rippon of Hexham, the spiritual begetter of the Delegated Powers and Regulatory Reform Committee, who taught me a great deal of what I know about procedure. Obviously, in some cases, there are arguments for Henry VIII powers; the classic one is the power to uprate used in social security orders every year. However, as I understand it, it was not the purpose of the power to allow the taking away of legal rights of appeal by the Lord Chancellor by order without any parliamentary proceeding simply because they did not suit him or were a nuisance.
I think that this is a gross abuse of the Henry VIII power, and I hope that the Government will continue the honourable record of both this and the previous government of paying serious attention to the passages where the Committee says that it "must draw this to the attention of the House". I remember the late Lord Rippon insisting that the Committee must not say anything stronger than that, because the decision must be not that of the Committee but that of the House. I respected that decision of his, and I hope that we observe it.
I support also the other amendments in this group. I found, too, the noble Lord, Lord Joffe, extremely moving. I interpreted him in the way set out by the noble Lord, Lord Judd. I also found him very difficult to answer, and I shall not attempt to do so.
Like many others, I am amazed at the lack of judicial appeal on points of fact. If I may, I say to the noble Countess, Lady Mar, that I mean no disrespect whatever to the Immigration Appeal Tribunal. So many errors creep into the process in fact at a lower stage that not even an Olympian Immigration Appeal Tribunal could spot them all. For example, appeals have been turned down for lack of credibility because, under General Mobutu in Zaire, opposition parties were allowed to operate freely. That was not an error of law. People have been found not to have been tortured because the scars were "self-inflicted" although they were on their back. That was not an error of law.
Until the determination of fact at the lower stages of the process is much better than it is now, and if—God forbid—we were forced to choose between appeal on
points of law and appeals on points of fact, I should have thought that points of fact were the more important.5.30 p.m.
Lord Corbett of Castle Vale: I hope that I will be forgiven for reminding the Committee of one of the reasons why we have this Bill in front of us. It would be very difficult, I think, to find many people in the United Kingdom who felt that the existing law was anything like as fit as it should be for its purpose in dealing with these important matters. My noble friends the Ministers have several times made the point that one of the Bill's main aims is to reinforce the one-stop appeal system.
As any of us who have had even slight experience with people claiming asylum in this country will know—this is the fact, although I readily confess to noble Lords that I very often share the reservations of my noble friend Lord Rooker about what he calls "the legal trade"—in asylum applications, it is not unknown for solicitors and other involved in the process to say, "No; don't do all this at once. Save that bit for a later stage. In case the original claim fails, we need some other argument in order to apply for appeal and to keep that appeal process going". That must happen. Certainly it has occurred in my experience. The Committee is in danger of losing sight of that. However, that is not to "do down" those coming here to claim asylum.
It is our duty to do what we can to put in place a system which is fair to all those claiming asylum but at the same time deals expeditiously with those claims. We witnessed the result of not doing so in Lye, Stourbridge. After weeks and weeks of protracted negotiation with a family who had taken refuge in a mosque in the village of Lye on the outskirts of Stourbridge, the Home Office felt that it had no alternative but to use force to gain entry to the mosque to implement the decision to deport the family whose asylum application had originally been made in Germany and turned down. They escaped from custody in Germany—these matters must be faced—and paid to be smuggled into the United Kingdom to make a further application for asylum here without mentioning that there had been an earlier application in Germany. None of us wants to see that kind of situation. Such situations are unfair to asylum applicants and their families.
The people of Lye commendably felt that an injustice had occurred and made the point—I do not dispute that—that after two years the family concerned, who were originally from Afghanistan, had settled into their community. Such a reaction in those circumstances should make us all proud of the people of that community. However, that is not the point I wish to draw to the Committee's attention. That situation arose because of a failure on the part of the present system to deal expeditiously with that asylum claim. As I have said before, it is my view, whatever other arguments may be put forward, that we must change the present culture so that when an asylum claim is made those who handle the claim should put
all the cards face up on the table right at the start of the process and not be tempted to save certain matters for a later day.I have great regard for the noble and learned Lord, Lord Mayhew of Twysden, and I believe that he is aware of that. However, I find his assertion with regard to the different outcomes of a judicial review decided on paper and that decided after an oral hearing rather difficult to justify, if I may put it that way. The inference was that the oral applications succeeded primarily because they were oral and that those conducted without an oral hearing failed because an oral hearing did not take place. I say with great respect to the noble and learned Lord that there is not the slightest evidence to support that. I suppose that that inference could be drawn but I do not believe that it stands up to two minutes' investigation. I understand that we employ Law Lords on occasion to trail through the entrails of such claims.
As one or two Members of the Committee have said, we can stretch some comparisons too far. I refer to the comments in regard to the apartheid regime made by the noble Lord, Lord Joffe. We were aware of the stated legal purpose of that vile regime which existed in South Africa. I cannot believe that a single Member of your Lordships' House believes that the purpose of this Government or any other government that we can imagine in this country is anywhere remotely near that. Motives play a part in this matter. It is to the benefit of all of us, including asylum applicants and their families, that we put in place a fair process which delivers a result much faster than does the present system. That point needs to be underlined.
That said, I say to my learned noble friend on the Front Bench that I very much hope that she will take on board the points made by my noble and learned friend Lord Archer of Sandwell. I accept the general thrust of what the Government are trying to do here. I remind the Committee that we are discussing an appeal to a tribunal where there has been a refusal of an original application. We want the one-stop-shop approach. I hope that my learned noble friend who will respond to the debate will think carefully about what my noble and learned friend Lord Archer said. In my view it gives nothing away to give the sole judge who will hear the appeals we are discussing discretion to say, "I do not feel that I am able in this particular case to come to a secure judgment solely on the basis of the relevant papers" and therefore to enable that judge in those circumstances to say that he wants to hear some oral argument.
Next Section
Back to Table of Contents
Lords Hansard Home Page