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Lord Goodhart: I apologise to the Committee for making a second intervention from our Front Bench on the matter. I do so only because there are a couple of rather detailed questions on the interpretation of Clause 89 which I should like the Minister to answer when she responds to the debate.

First, I refer to subsection (2) of Clause 89. What is the meaning of the words,

"a review of the Tribunal's decision"?

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Is that decision the tribunal's decision on the actual appeal which it hears or is it its decision simply to refuse or grant permission to appeal to itself? Common sense suggests that what it ought to mean is that the High Court can review the tribunal's decision on the appeal. However, a reading of subsection (2) of Clause 89 suggests otherwise because one would then expect it to state,

"A party to an appeal to the tribunal",

instead of,

"A party to an application to the Tribunal for permission to appeal".

It seems to me that there is serious uncertainty there.

Secondly, I refer to subsection (4) of Clause 89. The Home Office in its memorandum to the Delegated Powers and Regulatory Reform Committee clearly considered that subsections (2) and (3) create certain rights which, if they were overused, might be taken away. The Delegated Powers and Regulatory Reform Committee, of which I am a Member, took at face value the effect of subsection (4). However, it can be argued that subsections (2) and (3) simply impose certain restrictions on the normal right of judicial review of an inferior tribunal. If that is so, the effect of removing subsections (2) and (3) would be to improve the position of the immigrant or asylum seeker because then the ordinary right of application for judicial review, which includes a right to an oral hearing when permission is being sought, would arise again. I hope that the noble Baroness can respond to that point.

Lord Kingsland: I should remind the Committee at the outset of my remarks that subsections (2) and (3) of Clause 89 were introduced as amendments in the Standing Committee in another place and were not spoken to by the Minister or debated by that Committee because of the operation of the guillotine Motion. Subsection (4) was introduced by the Government at Report stage in another place and could not be discussed for similar reasons. Apart from the debate in your Lordships' House at Second Reading, therefore, there has been no prior scrutiny of these provisions.

On Amendment No. 207A, which appears in the name of the noble Lord, Lord Joffe, I, like many other Members of the Committee, will be most interested to hear from the noble Baroness an explanation of exactly why the Government believe that appeals to the Immigration Appeal Tribunal should be limited only to points of law and what the Government think is wrong with the present system in that regard.

The White Paper contained no justification for the proposed change, which was covered by the single sentence in paragraph 4.66. It stated:

"The Tribunal will focus entirely on the lawfulness of adjudicators' decisions rather than their factual basis".

In particular, I should be grateful if the noble Baroness would tell the Committee how many appeals on the facts are allowed by the IAT and how many have been refused. If she cannot do that this afternoon, perhaps she would kindly undertake to place those figures in the Library.

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I turn to Amendment No. 207B, which also appears in the name of the noble Lord, Lord Joffe. It is important to note that the Government's original intention, which was also signified at paragraph 4.66 of the White Paper, Secure Borders, Safe Haven, was to make the IAT a superior court of record, as the Employment Appeal Tribunal now is. That would, of course, have had the effect of removing the right to judicial review of its decisions. The Government, plainly, have decided not to pursue that course.

The amendments brought forward in another place, nevertheless, are rather strange. They would provide for a new statutory review procedure in the case of a refusal of permission to appeal by the tribunal. I should particularly welcome the Minister's comments on the limitation of the review process to errors of law under Clause 89(2). I assume that that would not include other grounds of judicial review, such as bias on the part of the tribunal or procedural unfairness. Is it really the Government's intention to exclude those grounds of review altogether or do they believe that they are covered by the term "error of law" in subsection (2)?

I turn to the amendments tabled by the noble and learned Lord, Lord Archer of Sandwell. The Minister, as many Members of the Committee have said, will have to put forward a powerful case to rebut the arguments advanced by the noble and learned Lord. If a judge thinks that it is in the interests of justice to have the arguments advanced before him orally, why on earth do the Government propose to prohibit him from hearing such arguments on his own motion?

I turn to Amendment No. 209ZA, which appears in the name of my noble and learned friend Lord Mayhew of Twysden, and to Amendments Nos. 209ZB and 209ZC, which appear in my name and that of my noble friend Lady Anelay. They are concerned with the proposed power to repeal by order the new statutory review procedure contained in subsections (2) and (3). My argument will, broadly, follow that outlined by the noble Lord, Lord Goodhart.

In their memorandum to the Delegated Powers and Regulatory Reform Committee, the Government stated in paragraph 122:

"Subsection (4) has been introduced as a safeguard to ensure that 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".

I hope that the Minister will explain what the Government mean when they say that the advantages of a review by the High Court will be lost if there are more applications for review than they anticipate. Are the advantages that will be lost advantages for the Government or the appellant? How many applications for review do they anticipate and at what level of applications do they intend to invoke the powers in subsection (4) to do away with the review process?

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I hope that the Minister will be able to give a full response to the concerns of the Delegated Powers and Regulatory Reform Committee, expressed at paragraph 7 of its report. It stated:

"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".

My amendment and that of my noble and learned friend would achieve that by a slightly different route.

My noble and learned friend seeks in Amendment No. 209ZA to remove subsection (4) altogether. My amendment seeks to meet the Government's own argument that Clause 89(4) is simply a safeguard by providing for subsection (4) to cease to have effect after two years have elapsed; in other words, it is a sunset clause.

That is a generous period of time, and if the Government's intention in including subsection (4) is to stop the High Court being overwhelmed by applications for review because they are uncertain about the number of applications that will be made, they will, as a result of the amendment, be able to dispense with the power in subsection (4) if their fears prove unjustified. They would, however, be able to provide for the continuation of the power by an order made by affirmative resolution if such fears remain.

If the Minister is hostile to these amendments, she must explain why given that they meet the Government's own argument for the retention of subsection (4), as outlined to the Delegated Powers and Regulatory Reform Committee; namely, an immediate and overwhelming increase in the number of applications for review.

These provisions in the Bill went undebated in another place; given the implications of the Government's proposal, which has been questioned on all sides of the Committee, I hope that the Minister will take up the invitation that I extended to her to explain and justify what the Government propose in Clause 89.

5.45 p.m.

Baroness Scotland of Asthal: I say immediately, and to my noble friend Lord Judd in particular, that nothing that has been said by Members of the Committee today will be lightly tossed to one side. This Committee debate has engaged the attentions of my noble and learned friend Lord Archer, the noble and learned Lord, Lord Mayhew, the noble Lords, Lord Dholakia and Lord Goodhart, the right reverend Prelate the Bishop of Southwark, my noble friends Lord Clinton-Davis, Lord Judd and Lord Corbett, the noble Countess, Lady Mar, the noble Baroness, Lady Carnegy, the noble Earl, Lord Russell, and—last but by no means least—the noble Lord, Lord Kingsland, for one hour and 15 minutes. That can do nothing but put terror in the heart of those who have had to listen.

I hope that I shall be able to ease the troubled spirits of Members of the Committee on this issue. The noble Lord, Lord Kingsland, rightly said that these matters

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were not debated in another place. Clause 89 is a very important clause. It goes to the heart of our policy of ensuring that the immigration and asylum system is as fair as possible while improving the speed and efficiency with which cases are processed.

I say to the noble Lord, Lord Joffe, that we remain jealous of our procedures in this country. We jealously guard the fairness, integrity and probity of our system. The noble Lord should not be disquieted for a moment by the thought that we may negligently cast that to one side. We will not do so. The approach that has been taken in relation to the creation of a statutory review has been very careful indeed.

As I said, I am conscious that the other place did not have a chance to discuss Clause 89. Therefore, I hope that the Committee will find it helpful if I set out in some detail its purpose and effect. In doing so, I hope that I shall be able to answer fully the issues raised by a number of Members of the Committee, especially because the new statutory review process is just that—it is new. After I have explained—I hope, helpfully—the way in which we envisage the system will work, I shall, if I may, turn to the amendments that have been tabled.

Clause 89(1) allows the party to an appeal to an adjudicator to appeal to the tribunal against the adjudicator's determination on a point of law, provided that permission is granted by the tribunal. The current right of appeal to the tribunal, which is also subject to permission being granted by the tribunal, is on a point of law or fact.

At this point, I shall take up a matter to which the noble Countess, Lady Mar, alluded from her experience of sitting as an adjudicator.

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