Previous Section | Back to Table of Contents | Lords Hansard Home Page |
The Countess of Mar: Not as an adjudicator but as a member of the tribunal.
Baroness Scotland of Asthal: I beg the noble Countess's pardon. If the adjudicator has the facts wrong, as outlined by the noble Lord, Lord Joffe, and it leads to a perverse determination by the adjudicator, that perverse determination may be appealed on a point of law to the IAT. The IAT will consider whether leave should be granted. If it agrees, the appeal will go to the IAT for a full hearing.
Subsections (2) and (3) of Clause 89 provide for a new statutory review process. Clause 89(2) allows the party who was refused permission to appeal to the tribunal to apply to the High Court for a review of the tribunal's decision on the ground that the tribunal made an error of law. Subjection (3) sets out that a single High Court judge must determine the application on the papers only. The judge may affirm
Lord Goodhart: Therefore, do I understand the noble Baroness to say that the application is only for a review of the decision of the tribunal not to hear the appeal?
Baroness Scotland of Asthal: Perhaps I may explain. An adjudicator makes a decision. If the applicant wishes to appeal against that decision, he may then apply for leave to a vice-president or president of the IAT. If the application for leave to appeal is refused, it is that application for leave which can then be appealed to the High Court. If, under statutory review, the High Court judge determines that the adjudicator and the vice-president or president were wrong, the matter is then sent back for a full hearing before the IAT. That is how the process works.
Clause 89(3) sets out that a single High Court judge must determine the application on the papers only. As I said, the judge may affirm or reverse the tribunal's decision. That decision will be final. In addition, if the judge considers that the application has no merit under subsection (3), he is required to issue a certificate to that effect.
Clause 89(4) provides the Lord Chancellor with the power to make an order to repeal statutory review. Any such order will be subject to the affirmative resolution procedure and so will not be made unless a draft has been laid before, and approved by, each House of Parliament. We have confidence that statutory review will provide an effective alternative remedy to judicial review for this category of case.
Lord Goodhart: I am sorry to intervene again. Does it therefore also follow that, if permission is given to appeal to the tribunal and the tribunal hears a case, that decision of the tribunal will be subject to judicial review in the ordinary way? If so, that is helpful.
Baroness Scotland of Asthal: I am glad that the noble Lord finds it so. As I said, we have confidence that statutory review will provide an effective alternative remedy to judicial review for this category of case and that the order-making power will not be used. However, as all Members of the Committee know, asylum tends to be a very problematic area for the appeals and court system. We are introducing statutory review as an entirely new provision and consider it to be a sensible precautionary measure.
We have tried as hard as possible to think of a scenario which might lead to calling upon this provision. It is clear that, at present, that is difficult to envisage. But we know from experience that that which is difficult to envisage at the time of creation in hindsight becomes foreseeable. Therefore, Clause 89(4) is included as a sensible precautionary measure and nothing more.
The process of statutory review is a very important part
Earl Russell: I beg the noble Baroness's pardon. I still do not understand the precaution. What is it a precaution against?
Baroness Scotland of Asthal: If we were to find that, contrary to our expectation, the process was neither as speedy nor as efficacious as we believed it should be or that subsequently it was found to have some other
fundamental flaw, that is the basis on which it would be reviewed. But, as I said, that would be done by affirmative resolution. Therefore, an order would come before this House and the other place. The reasons that it was considered no longer to be feasible would be laid out, and this House and the other place would be able to express their views.
Earl Russell: If the noble Baroness wishes to reassure us on this matter, can she give a reassurance that future reform of this House will not, as suggested by the Government's White Paper, involve depriving us of the power to reject such affirmative resolutions?
Baroness Scotland of Asthal: The noble Earl knows that it would be most injudicious of me to say anything in response to his comment. Therefore, I shall save my breath to cool my porridge, if the noble Earl will allow me so to do.
This area has troubled us all greatly. We believe that it would be right to reserve the position as I have described. The new process of statutory review forms an important part of our policy for reducing delays in the asylum process. One of the biggest causes of delay is judicial review. I know that in many cases in your Lordships' House it has been said that judicial review is a blunt instrument or perhaps not the most appropriate instrument that can be used in relation to immigration cases. We bear that very much in mind.
Many asylum judicial review applications take five months or more to pass the permission stage. However, from April 2001 to March 2002 only 14 per cent of asylum judicial review applicants were granted permission. If permission is refused, the applicant can still seek leave to appeal to the Court of Appeal. Therefore, we have introduced statutory review in order to bring a speedier and final conclusion to many cases which previously would have sought judicial review. At the same time, we are ensuring that we still retain High Court judicial scrutiny.
I know that in relation to this matter the noble Lord, Lord Joffe, asked why we should treat these cases any differently from all others. A very sad fact is that in this category of cases a number of people do not seek a determination of their claim. They seek delay. That is unusual indeed because in any other form of adjudication the litigants usually want a result; they want their claims determined. Only in this area is there a category of applicantI do not say a majoritywho do not seek resolution. Realising, perhaps for good reason, that they have no legal justification, they seek an opportunity to remain within the jurisdiction.
In such cases we do not refer to those who are anxiously seeking asylum. A delay to those who anxiously seek asylum causes great pain, difficulty and hardship. Those who want to have their asylum applications determined want them determined speedily so that they can get on with the rest of their lives and so that they can have the security and safety that they crave. Many asylum seekers make that claim and say that they want to know and they want to know quickly.
Lord Goodhart: In that case, if subsections (2) and (3), as I now see, are directed towards simply creating an accelerated way of dealing with judicial review of decisions not to grant leave to appeal, what good would be served by using the power in subsection (4) to remove subsections (2) and (3)? Surely such a move would restore the status quo and leave the matter open for the decision not to grant leave to appeal to be judicially reviewed.
Baroness Scotland of Asthal: That is precisely so. This is not a strategy to try to get rid of judicial review. There is nothing underhand or inappropriate. We understand that we are moving to a new process, which is different from that to which we have been used over a long period of time, namely, judicial review. We are confident that this new statutory review process will succeed. If, for a reason that we cannot currently divine, it proves not to be the most successful or most just way of dealing with such applications and we bring a resolution before the House to support an order to rescind Clause 89(4), judicial review would return.
We are not using this to make matters worse; we are saying that if we find that the justice of the situation does not fall as we currently envisage, then that would be the safety net. We would revert to the situation that we have now. I hope that I have been able to reassure all noble Lords who are concerned about it that there is no pernicious or inappropriate intent in that regard. I see that the noble Lord is puzzled because, doubtless, he thinks that this is shooting ourselves in the foot and that it would be better just to get rid of it. But noble Lords can see how open the Government are.
Lord Mayhew of Twysden: I have already asked the Minister this question. Does she now say that the Government would not come forward with further legislation to meet the perceived inadequacy of what is contained in subsection (4) rather than revert to untrammelled judicial review? Can she give the Committee the assurance that no further legislation will be put forward in substitution?
Baroness Scotland of Asthal: With the noble and learned Lord's long experience of government he will know that I would not possibly be able to say at this point that we would not bring forward further legislation. If there were a hiatus between the position that prevailed between any order and any new legislation, the gap, if I may respectfully put it so, would be filled by a re-emergence of judicial review.
Next Section
Back to Table of Contents
Lords Hansard Home Page