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Lord Archer of Sandwell: At the risk of being tiresome, perhaps I may make a short point. We are dealing not with oral evidence but with oral argument.
Baroness Scotland of Asthal: I entirely agree; we are dealing with oral argument. However, the Committee will know that the ability to translate oral argument into skeleton argument, so that the court has the full benefit of the advocate's voiceif not in its presence, on paperhas greatly enhanced the value of the written argument. That is presented in a way that was previously not the case, when one simply had the grounds and not a fully argued skeleton by which the court could judge the basis on which oral argument would be advanced if the matter came before it. As the Home Office does not have the right of response at that stage, the court has unalloyed the full flavour of what the appellant or applicant would seek to put before it had he an opportunity to engage in oral argument.
As I said, the statutory review process deals with the refusal; it is not a rehearing. Instead of going through the process of judicial review to challenge the
tribunal's decision to refuse permission to appeal against the adjudicator's determination, the tribunal's decision will be swiftly checked on an error of law by a High Court judge considering a paper submission only. Again, I stress that it is a review of a judicial decision, not of administrative decisions, which are usually the source of judicial review applications. The original administrative decision by the Secretary of State would already have been tested through an appeal to the adjudicator, and subsequently by the adjudicator's determination by a leave application to the tribunal. The Committee will know well that usual judicial review does not offer the advantage of a full hearing before an adjudicator before the case is then heard again.Last, but by no means least, I turn to the amendment tabled by the noble and learned Lord, Lord Mayhew, the noble Earl, Lord Russell and the noble Lord, Lord Dholakia, which would remove subsection (4). I hope that I have fully explored the reasons why we consider the provision a helpful one to keep on the stocks. I tell the Committee openly that I do not envisage our taking advantage of it. However, I may be proven wholly wrong. Something unexpected may happen and we may have to revisit that decision. The provision is there just in case.
I turn to the question asked by the noble Baroness, Lady Carnegy. As we will be introducing statutory review to Scotland, the Lord Chancellor will not make an order unless he has first consulted with Scottish Executive Ministers. From that, I take it that if the Scottish Executive were minded to continue with the provision, they could do soobviously, having consulted the Lord Chancellor. If I have in any way misunderstood the current position, I shall write to the noble Baroness.
The Delegated Powers and Regulatory Reform Committee criticised Clause 89(4) and suggested that it should be omitted. The Committee was specifically concerned that the Home Office memorandum justified subsection (4) as needed
Baroness Carnegy of Lour: I know that time is rushing on and the noble Baroness must finish, but is she saying that the Lord Chancellor might repeal subsections (2) and (3) south of the Border, but not north of the Borderor the other way round? Perhaps she would prefer to write to me about that.
Baroness Scotland of Asthal: I shall certainly write to the noble Baroness, but, as I understand it, the Lord Chancellor would consult Scottish Executive Ministers before making an order. If the Scottish Executive wanted to keep the provision, we would seek
to draft the order in such a way as to allow the provision to remain in Scotland, in accordance with the usual procedure. Obviously, that would be a matter for consultation. It may be that they had had a similar experience and wanted to do the same as England and Wales. One cannot legislate for the future; one does not know.Amendments No. 209ZB and 209ZC would have the effect of restricting the Lord Chancellor's power in subsection (4) to repeal the subsections relating to statutory review to a period of two years. After that period, the Lord Chancellor could make an order, subject to affirmative resolution, extending the power for a further two years. The amendments are restrictive and, if I may respectfully say so, superfluous. They place an unnecessary burden on the parliamentary timetable by requiring the Lord Chancellor to seek parliamentary approval every two years in order to retain the power. If the intention behind the amendments is to introduce safeguards against any potential misuse of the power, they are clearly unnecessary.
Under the existing proposals, subsection (4) of Clause 98 would allow my noble and learned friend the Lord Chancellor to repeal statutory review if the order repealing it had been approved by both Houses. Therefore, the necessary safeguards are in place. It would also save parliamentary time to have an open-ended arrangement, rather than placing unnecessary restrictions on the ability of my noble and learned friend to exercise the power when he so chose.
The noble Lord, Lord Kingsland, asked some specific questions. He wanted figures for appeals on a point of law to the Immigration Appeal Tribunal. We do not have those figures; the figures do not distinguish between points of law and points of fact. I can, however, give the Committee certain figures. I have given them in part already, but, to be complete, I can tell the Committee that, of the total applications against refusal of leave, 12 per cent were granted, and 88 per cent refused. Of the cases that go on to full hearings, 70 per cent were allowed and 20 per cent dismissed. That is inevitable, given that it is the stronger cases that go on to the IAT. Under statutory review, such cases would, in all likelihood, be referred back to the IAT for hearing.
I have dealt with Clause 89(2).
Lord Kingsland: The Minister says that she has dealt with Clause 89(2). I asked her about the scope of the expression "error of law". Can I assume that it is shorthand for the full portfolio of judicial review remedies?
Baroness Scotland of Asthal: I feel like saying that "error of law" means what "error of law" means in case law. It will include the perverse finding of facts, as I described, and cases in which the court has got it wrong.
Lord Avebury: Do the figures that the Minister has just given include withdrawalscases in which the
Home Office has settled the case to the satisfaction of the applicantand cases that have succeeded on renewal or at the Court of Appeal?
Baroness Scotland of Asthal: I am not clear on the precise way in which the figures are made up. Other than giving the noble Lord the broad outline, I cannot say whether withdrawals, for example, are included in the appeals that have succeeded. They may not be included; they may be in addition to those cases. I do not know, but I will undertake to clarify that, if we make such decisions. I can certainly write to the noble Lord.
I am helpfully told by the Box that "error of law" means "error of law".
Lord Kingsland: Strictly speaking, therefore, the expression might be said to exclude matters of natural justice, procedural fairness, proportionality and the whole range of remedies that go with the Human Rights Act 1998. Is that the Government's intention?
Baroness Scotland of Asthal: As I have said exhaustively, the Government's intention is that the matter should have the scrutiny of a High Court judge, as well as the scrutiny of a vice-president of the Immigration Appeals Tribunal, after having had the advantage of a hearing before an adjudicator. It is our intention that statutory review should cover cases that would, otherwise, have gone to judicial review of the application for appeal.
Lord Lucas: Can the Minister assure the Committee that the 12 per cent of people whose appeal succeeds would be as well treated under the new legislation as they are under current legislation?
Baroness Scotland of Asthal: We hope that those who have valid claims will have a proper opportunity to advance those claims and have them reviewed and heard. I cannot, of course, say whether the figure will be the same in the future. It might be 12, 18, 20 or just 1 per cent, but those who have valid appeals will have a proper opportunity to have their case heard.
Lord Goodhart: I am sorry to intervene again, but I must follow up what the noble Lord, Lord Kingsland, said. It is normal practice that, say, the Court of Appeal, when deciding whether to give leave to appeal, will make its decision not on the basis that the court below made an error of law but on the basis that the legal issue involved is sufficiently important to justify it being reconsidered at an appellate level. Where, in that case, can we say that there is an error of law that can be used as a basis of a decision to grant leave?
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