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Earl Russell: My Lords, I shall not attempt to gild the lily as regards the remarks of my noble friend Lord Goodhart. But perhaps I may add to the all-party support for Amendments Nos. 55 and 56, which seem to drive at similar points. "Hear both sides" is a fundamental maxim of natural justice. I know that a rising tide of paper is lapping round the base of that principle. But, every now and then, rising tides of paper reach the point where people feel the need to erect flood defences against them. I feel that that point may be approaching, especially in asylum cases.
In any first decision in asylum cases, so often the key point is the credibility of the applicant. I know—because it is my professional duty as an historian—that one may attempt to judge the credibility of people off paper, but just for that reason I know how difficult it is. I know how much more satisfying it would be to be able to cross-examine Charles I on what exactly his motives were. I support these amendments warmly.
Lord Judd: My Lords, my noble friend the Minister cannot possibly ignore the complementary nature of the contributions from all quarters of the house on this issue. There is obviously widespread concern about the matters raised in the amendments.
When this group of amendments was introduced by the noble Lord, Lord Joffe—whom I have enjoyed knowing for many years in our work together in Oxfam and elsewhere—not only did we hear a powerful legal case, but behind it was the moral authority of someone who was in the front line of these issues as a human rights lawyer in South Africa in the old days and who, as a result of that work, was compelled to leave South Africa.
Central to all the various considerations put forward in relation to these amendments is the issue that I raised earlier. I make no apology for stressing it again. If we really remain committed to the principle of asylum, as distinct from settling for a management policy to ensure that not too many people come to this country, it is unthinkable that anyone who is pursuing a case for asylum should be denied all the processes of the law which have become so important in the rest of the legal administration in our national life. It is just
unthinkable. Asylum, by definition, is about such acute human need. I underline the point made earlier that if the appeal procedure is removed, where will be the discipline of excellence that the existence of such a system ensures in the administration of justice generally? We are in danger of dumbing down our whole concept of justice and its administration.
Lord Hylton: My Lords, I support the amendments moved by my noble friend Lord Joffe. All sides of the House would agree that to achieve good results in these matters a right interpretation of the facts is essential. Often, such an interpretation will turn on knowledge of the situation in the country from which the applicant comes. Such knowledge will include the degree of persecution carried out by a government and the degree of persecution that may be carried out by other non-governmental parties. If these factors are to be considered properly, we ought to follow the Canadian model of an independent commission to consider the situation in applicants' countries of origin. That would be the commission's first minimum function. Later, no doubt, it could take on a wider remit.
Baroness Scotland of Asthal: My Lords, I have had a formidable array of speakers against me this evening. We all enjoyed the very robust debate at the last Committee session, which lasted well over two hours. I note that it is 11.10 p.m., so I will adopt the stance taken quite often by the noble Lord, Lord Kingsland, of trying to be telegraphic in my responses.
I shall reiterate the procedure, because it is important to bear in mind the context. All the applications that will be subject to this procedure will have already undergone intensive scrutiny. Initially they will be viewed by Home Office officials to determine whether the case is sound. Then there will be a complete oral hearing before the adjudicator. During today's debate, proper applause was given to adjudicators' hard work and the efficacy with which it is done. I note the comments of the noble Lord, Lord Joffe, about part-time adjudicators, but I assure him that all adjudicators operating in the system are well trained and well honed on immigration issues. They discharge their duty with just as much care and rigour as do the full-time appointees.
After that scrutiny, if the adjudicator feels that leave should not be granted and refuses the application, there is a second pair of judicial eyes. The decision is reviewed by the president or vice-president of the tribunal. The third pair of eyes are those of the High Court judge. I reassure your Lordships that I am more than content that by the time the proceedings reach the statutory review stage, there will have been the opportunity for a fair and public hearing, which is a right contained in Article 6 of the ECHR.
The nub of the issue is whether a paper review by the High Court judge will suffice. I hope that I can reassure your Lordships about that. A number of noble Lords have echoed the amendment tabled by my noble and learned friend Lord Archer in asking what will happen if the judge says, "I am not sure. In
essence, there may be something in this". Our expectation is that in those circumstances the judge should refer the matter back to the IAT for it to determine the issue.Of course, that will have to be done in accordance with rules. I cannot say that the civil procedure rules will be in a certain format. A number of your Lordships will know that the civil procedure rules are the province of the committee. However, our expectation is that the application would consist of a written argument, the tribunal's written notice of decision and a copy of the application for permission to appeal to the tribunal, including the adjudicator's written determination. Your Lordships will remember from our last debate that it is not proposed that the Home Office should have a right of reply at this stage. The application will be determined on the evidence produced by the appellant only.
Once an application is lodged, a judge looking at the papers will either affirm or reverse the tribunal's permission decision and provide written reasons for his decision. If the judge thinks the applicant may have an arguable case, rather than adjourn for an oral hearing—which would be the trigger for sending the case back to the tribunal for an appeal to allow proper consideration, including oral arguments—the rules should provide that it should then be heard by the IAT. That is not a removal of the opportunity for oral argument. That argument is simply being transferred to the IAT, which we consider to be the proper place, giving the speed and efficacy that would better suit the needs of the applicant's case.
We do not believe that that involves dumbing down, as has been suggested. It does not involve lowering the standard that we would reasonably expect for our judiciary and the case law to operate. It demands careful scrutiny.
11.15 p.m.
Lord Judd: My Lords, I am sure that we are all grateful to my noble friend for the characteristically considerate way in which she is replying. We are encouraged to take the concept of joined-up government seriously. In another sphere of government—in education—we are hearing a great deal these days about the importance of excellence. In the administration of justice, is not excellence an essential ingredient? Is not the consideration here that ultimately we are playing down the role of excellence in the consideration of these matters?
Baroness Scotland of Asthal: My Lords, I hear what my noble friend says, but his argument will be listened to with some alarm by the current members of the IAT, who have a very high level of probity and have had many plaudits for their excellence. We do not see that it is diluted in any way. Noble Lords will know that the IAT is a specialist tribunal, honed in relation to this type of law. It has all the expertise that one would wish to be directed to the consideration of these issues. I am always tempted to be persuaded by my noble friend, but on this issue I must forcefully part company with him.
The arrangements we envisage will enable hearings to be heard more quickly, more efficiently and, therefore, we believe, more effectively, without losing any degree of probity. Although we cannot accept the amendments as drafted, we of course understand their import and why they have been pursued to this stage.
The noble and learned Lord, Lord Archer, asked about the role of the two lay members. I must tell him that lay members often enhance the acuity with which lawyers look at and understand the rule of law. There is even an argument for extending the lay element in other parts of the judicial process to enhance the grounded nature of the delivery of justice. I would not like the noble and learned Lord to labour under any misunderstanding as the Government indeed believe that lay members can make a valuable contribution in this regard.
The point on the point of law is clear. I do not want to reiterate everything that I said in Committee, but the question of the mixture of law and fact is often interpreted by some as a question of fact when, in fact, the court itself interprets it as a point of law. The IAT has been very careful in its more recent judgments to clarify how the interpretation will be used. There may well be a misconception about the IAT's current grant of permission, but I assure noble Lords that it is indeed on a point of law. That is being reiterated in the current provision.
I turn to the point on Scotland made by the noble Lord, Lord Kingsland. I regret that we cannot accept this amendment, simply because only the High Court in England and Wales will be required to issue a certificate, under Clause 99(3)(d), if the judge thinks that the application has no merit. It is not proposed, following consultation with the Scottish Executive, to place an equivalent requirement on the Court of Session to issue a certificate as the legal aid arrangements in Scotland are different from those operating in England and Wales. It will of course be open to the Scottish Executive, if they think it right and so choose, to replicate or mirror certain conditions in relation to penalties.
In relation to Amendment No. 59, we believe that statutory review should bring an end to cases in which leave is not granted because of lack of merit. On such matters there should not be further appeal. If leave is granted and the matter goes back to the IAT, the normal route of appeal will continue.
I am conscious that it is now 11.25 p.m. I hope that I have said enough to reassure your Lordships on these matters. I rely on everything that I said in Committee. I looked very carefully indeed at the representations made at that point, and I have listened very carefully this evening to the further representations by noble Lords. I assure your Lordships that we can deal efficaciously with this matter by using the rules. Proper rules will be made which, as noble Lords know, will include consultation with all the stakeholders, to ensure that they are robust, efficacious and actually deliver what we wish. Although I cannot prejudge what the rules committee will do, I can reasonably anticipate that it will do as I have just outlined.
I therefore invite noble Lords not to press these amendments, and not to bring the matter back on Third Reading.
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