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Recent legislation has both dispersed asylum seekers around the country and put some into destitution. This has led many Churches in different parts of the country to have first-hand experience of encountering refugees and asylum seekers. Their response was, at first, cautious; then, occasionally, it was brave in the face of local, sometimes extremist, opposition. Many times it deepened concern about legislation such as that proposed to your Lordships' House today, and a recent debate in the General Synod very much reflected this concern. Let me quote from a letter sent to me from Sister Maureen Lynch, a missionary sister and a worker at Twickenham Refugee Welcome Centre. She writes this:
Church people such as Sister Lynch all over the country have become more aware of the issues and challenges asylum seekers and refugees face, because they are there on our doorstep. With their fellow citizens they engage in the political arguments for, of course, this is a deeply political issue. But for us this is also a pastoral and perhaps a prophetic challenge. People fleeing oppression and persecution arrive at our ports and airportsvulnerable, desperate, in a strange and bewildering placeand find themselves confronted with processes that they may not fully understand or trust. Such people come to our church halls and vicarages because there are very few other places to go.
I live near to the Home Office immigration centre in Croydon and within yards of the Spires Centre through which local Churches provide resources for the helpless and the homeless. Day by day we are not seeing worthless scroungers or economic migrants ready to manipulate a lax system. We are seeing men and women who are anxious and frightened and trying to keep body and soul together in a strange land. Churches, faith communities and concerned people are providing food and clothing banks, language and induction classes, housing and legal advice, translation services and befriending. They are filling a gap in provision which the Bill will, I fear, worsen.
Clause 8 proposes to remove benefits from those whose claims have been turned down. One can see the hard-headed reasons for the proposals, but one must doubt whether such an action will diminish people's determination to stay.
As your Lordships have heard, both the Home Secretary and the Minister in another place have insisted that leaving families destitute or taking children into care is not the Government's aim. Provision to ensure that this undesired aim is not achieved by default would therefore be welcome. Along with other noble Lords, I look forward to examining the robust provisions to avoid this calamity, as promised by the noble and learned Lord the Lord Chancellor in his introductory speech. Any government would be most unwise even to appear to bring in legislation in which it could be alleged that children were being used as a lever upon families to return to countries in which they fear to live.
While referring to children, will the Minister confirm in her response to the debate that under Clause 2(5)(c) being an unaccompanied child would always in itself be reasonable excuse for not being in possession of immigration documents? Surely it is not the Government's intention ever to criminalise such children.
Clause 8 raises concerns which I might call humanitarian. Turning to Clause 14, the concern would have become almost constitutional had not the noble and learned Lord the Lord Chancellor sent earlier signals of considerable amendment.
I can understand why the Government wish to speed up the appeals process and prevent its use as the means to justify the end of an indefinite stay. I also acknowledge that the Government have worked hard in improving the speed at which decisions on asylum claims are taken, most now within six months. But the Home Affairs Select Committee at the end of January emphasised the need to combine efficiency with fairness. This is also the concern of these Benches.
We need, at least, to raise the quality of early decision-making. We need to know who will make those decisions and how; and with what interview procedures, information and interpreters the decision will be made. What will be the training and professional development for those engaged in such important work?
We must seek a system which is rigorous, even-handed and, above all, fair. A system which has all the appearance of quasi-legislation but which cannot be challenged in a court of law would surely give your Lordships pause for thought. Such a system would not work for it does not work in parallel situations.
I chair the governing body at Cuddesdon Theological College, a long-established theological college for training clergy associated with the University of Oxford. We have a long-standing twinning arrangement with a theological college in South Africa whereby two ordinands exchange places for a couple of terms every year. But not this year. The British ordinand was fine, but when the South African ordinand, carrying all the necessary documents, went to the British High Commission he was refused a visa. Why? He obviously was not a genuine student because he called the college "Cuddesdon" when its full name is Ripon College, Cuddesdon, and he did not know the timetable for the first week. On that standard of judgment we would have no students at all. But his application was refused and his appeal swiftly dismissed without any contact with the college.
The starting assumption is that the person seeking entry is lying. This skews the initial decision and requires an adequate appeals process. In this climate, the present system seems not so much excessive as necessary.
I understand from the speech of the noble and learned Lord the Lord Chancellor that the Government are prepared to make a move from their proposed position on Clause 14. Along with your Lordships, I look forward to examining the amendments that he promises.
I am no Thomas Gradgrind, but I appeal to your Lordships' sense of the importance of facts in asylum cases and the damage done to humanity where an appeals system risks being ignorant of the facts and a welfare system acts in flagrant disregard of them. For the local Church, ignored facts soon show up in broken lives. Let us work hard to enable the Bill to emerge as an Act worthy of a free Parliament, which has always led the way in working for a world community built on the foundations of justice and humanity.
Lord Brennan: My Lords, asylum and immigration are controversial and highly charged issues. Debating them deservesand I hope we will get it todayclear and objective thinking. The Home Office has an immensely difficult task in this area. It seeks a substantial reduction in immigrant numbers, at manageable cost with the least legal restraint. The objective has in-built tensions, the components of which, some might say, are irreconcilable.
The objective has four stagesentry, processing, decision and appeal. In assessing the task and determining the priorities, where does appeal come? At the end. The least important volumetrically; the least significant economically; and the most important in terms of justice.
Entry has been the subject of serious comment by the Home Affairs Committee in the other place; processing has been the subject of regular comment by our courts and even by the Chief Inspector of Prisons; and decision has been the subject of comment by the Constitutional Affairs Committee, which has called for better decision making. But appeals? Until this Bill arrived, in the legal world in which I practise I knew little of this degree of concern in the entire immigration system. But the issue has been raised and so we must deal with it.
Clause 14 conflicts with a basic principle of the rule of law, one eloquently enunciated by the previous Lord Chancellor, my noble and learned friend Lord Irvine of Lairg, when he said that Englishfor that we can read "British"courts attach great importance to the citizens' access to justice, and judges have now come to speak of this as a constitutional right. What is this constitutional right in relation to appeals in the asylum and immigration system? It is judicial review.
Judicial review is at the application of the person aggrieved; it is not triggered by a judge or a court. In order to obtain judicial review, leave has to be obtained. In other words, the applicant has to establish that he or she has a properly arguable case. If the case goes to judicial review, there are three basic reasons upon which the court will find that government action has been wrong if the evidence justifies it.
I entirely agree with the remarks of the noble and learned Lord, Lord Mackay of Clashfern. To stop such a right in respect of a person who, when it is denied him, may face grievous harmeven deathin the country to which he returns, would be a blot on our system of justice. I am sure that in the light of what my noble and learned friend the Lord Chancellor said this evening, the Government will not wish to be associated with such a state of affairs.
As this debate has progressed, clarity has been introduced into the analysis. Such legislation is ready to be amended, as I understand my noble and learned friend the Lord Chancellor. He called it a state of affairs by amendment that led to necessary judicial oversight. For me, that is a synonym for appropriate judicial review. He said that there would have to be new arrangements with the administrative court. I read that to mean access to the High Court. And if there is access to the High Court, then there should be access to the Court of Appeal, strongly controlled as it is by that court only giving leave to a case which has good prospects of success, and then to the House of Lordsthree or four cases a year, if that. Is this a system about which we should have concern or fear? Is it one we associate in our mind's eye with scroungers, thieves, ne'er-do-wells? I think not. It graces our system of justice. It introduces humanity. It represents what my noble friend Lady Scotland is reported to have said yesterday in a newspaper articlethat which is just and proportionate.
So when Clause 14 returns for our detailed consideration, I am sure that what we will have most in mind is not, at the one extreme, shallow populist rhetoric or, at the other, libertarian fears of some legal Armageddon, but, rather, a coolly analysed, clearly reached conclusion that there must be access to the courts, especially for the poor, the ill educated, the foreigner, the alien, whose rights are no less than ours to have access to our courts.
Lord Lester of Herne Hill: My Lords, it is always a pleasure to follow my learned friend, the noble Lord, Lord Brennan. I am only sorry that the noble and learned Lord the Lord Chancellor is not able to be here for most of this debate.
The clause's death may have been announced by the noble and learned Lord the Lord Chancellor this afternoon, but it will long be remembered. It is difficult to understand how a Government who fashioned the Human Rights Act and who claim to respect the rule of law could ever have promoted a clause which is, in Churchill's famous words, "in the utmost degree odious".
Clause 14 has been universally condemned. It is the combined handiwork of the Home Office and Department for Constitutional Affairs. It has had the powerful backing of a Prime Minister who once practised at the English Bara Prime Minister who, I am very sorry to say, most regrettably, responds to the pressure exerted by the gutter press with knee-jerk reactions in a vain attempt to appease the right-wing tabloid newspapers' insatiable appetite for ever harsher measures against asylum seekers, the Roma and would-be immigrants.
Until today, Clause 14 received strong backing not only from the Prime Minister and his populist Home Secretary but also from the Secretary of State for Constitutional Affairs who also practised with distinction at the commercial Bar. When the senior judiciary explained their objections about Clause 14, the Government's response was not to abandon the ouster clause but to widen it so as to prevent the courts maintaining the rule of law. I find it profoundly dispiriting that this clause was approved by the other place. Such a clause was not contemplated during the Second World War when this country faced Nazi invasion. It was not contemplated in the recent legislation to combat the barbarous scourge of terrorism. It is frankly outrageous that such a clause should ever have been introduced to curb judicial review by asylum seekers seeking refuge from persecution.
On 24 February, the Commons committee published its report on the Bill. It expressed its deep concern about Clause 14. On 14 February, the Joint Committee on Human Rights, of which I am a member, published its report. We wrote:
These unanimous criticisms from all-party committees of both Houses did not persuade the Government to withdraw the ouster clause. On the contrary, they used their dominant majority in the Commons to abuse their unbridled legislative powers.
I am saddened that the Minister was persuaded to make a similar compatibility statement when the Bill came to this House. I wonder who could have given that "proper and legitimate advice". Not, I feel confident, the noble and learned Lord the Attorney-General, nor any human rights counsel worthy of the name.
The Joint Committee did not share the Home Secretary's view that Clause 14 is fully compatible with the convention rights, and this use of a Human Rights Act compatibility statement as a shield against criticism illustrates the danger of treating the convention rights as the only constitutional rights protected by our system of law and government.
Yet the Secretary of State now tells us that the Government have decided to abandon Clause 14. Of course, we are glad that the Government have announced their prospective surrender, but they would have faced inevitable defeat in this House. And if they had somehow forced the clause through, there would have been a constitutional crisis, a clash between the principle of parliamentary sovereignty and the sovereignty of the Queen's courts.
If the courts could not have circumvented the all too plain and ugly words of Clause 14, they would have been called on to decide whether the powers of Parliament are unlimited. Could Parliament lawfully abolish the courts altogether, or indefinitely postpone elections, or in some other way attack the fundamental principles of democracy? According to the Home Secretary and Mr Lammyand presumably the Lord Chancellorthere are apparently no limits to the law-making powers of Parliament.
Our Joint Committee drew attention to the Commonwealth cases, where the Supreme Courts of India and of Bangladesh decided, under their written constitutions, that the legislature cannot destroy the essential features and basic structure of the constitution.
Parliamentary sovereignty exists only because the courts interpret the constitution and the common law as conferring wide law-making powers on the legislature. But if Clause 14 had been enacted, our courts would have had to decide whether that provision could be refused judicial recognition as an unconstitutional abuse of legislative power,
Because of the Government's prospective 11th-hour surrender, the question of the modern application of Dr Bonham's case will not arise. But this unhappy chapter in the life of this Government will not be closed. It will be remembered by future generations as a warning against the arrogance of power, and of the need to protect minorities against the tyranny of an elected majority. It will leave an unsightly stain on the reputation of this Government, for adopting a measure for which they will always bear heavy and collective responsibilityeach and every one of them. And it will serve as a warning against any further attempt by this Governmentor some future governmentto subvert the effective judicial protection of the rule of law.
Lord Hylton: My Lords, I agree with the noble Lord, Lord Brennan, that the Home Office does indeed have a difficult task to achieve, but there seem to be people within it who think that real problems can be solved by legislation. What is really needed in dealing with refugees and other would-be immigrants is thousands of small improvements in daily practice, where officials have to deal with their fellow human beings. I shall expand that point later.
This very questionable Bill has one redeeming feature; namely, Clause 4. It creates an offence punishable by up to 14 years' imprisonment of trafficking people to exploit their work or to sell their organs. The clause will enable this country to ratify the anti-trafficking convention, and I welcome it warmly.
I understand that a report from UNICEF to be published this week will show that there are some 3,000 street children in Sierra Leone extremely vulnerable to trafficking. The same may well be true of Liberia, Ivory Coast and Guinea, where there are war orphans
In Sierra Leone, organisations such as Caritas have a good record in rehabilitating brutalised child soldiers. I therefore ask whether our aid programmes will use that expertise to resettle the relatively small numbers of street children in west Africa and elsewhere at risk of being trafficked.
Victims of trafficking who co-operate in prosecution should be rewarded with residence and work permits if they want them. Victims should always be given both time and advice, before they decide what to do next. Will the Government draft amendments to cover these points?
I am glad that I now have the support of the Home Affairs Committee and the Constitutional Affairs Committee of another place and of at least nine out of 10 of the numerous briefs on the Bill concerning the importance of correct first decisions in asylum cases. It is not difficult to see why many first decisions are wrong and, indeed, perverse. The applicants must start by completing a 19-page form, responding in English only. The replies on the form are then checked against Home Office information on countries of origin. That information, I am sorry to say, is quite often incomplete or out of date. It sometimes conflicts with Foreign Office or US State Department assessments. Then comes the crucial first interview, and often the applicant has had no legal advice or adviser present.
The applicant has to face the "culture of disbelief" all too prevalent among Home Office caseworkers and minor officials. Country information may be overlooked, and all sorts of assumptions may be used to invalidate the applicant's story. Caseworkers regularly ignore the prevalence of bribery in poor countries. They pretend to know how police and prison officers work in foreign countries. They ignore or discount the use of torture and casual brutality, including rape, by both official and non-official parties. Both torture and casual brutality in fact are frequently causes of general fears of persecution in individuals. Those who wish for more details on these kind of lapses should study the report on refusal letters
The result of this poor practice is that 20 per cent or more of first decisions are being overturned. The rate for Somalia, Zimbabwe and Turkey has been up to 35 per cent. That is why greatly improved training and supervision is needed for caseworkers and supervisors. Given their stated wish to reduce the number of appeals, will the Government provide resources for training staff, for ensuring that their usually good guidelines are in fact followed, and for early legal advice and top-quality interpreters? These are the minute particulars so urgently needed, rather than the endless legislation with which we are faced.
In Canada, where I once worked, there is a refugee protection division. Would that we had something similar here. Our duty of protection under the convention might be better discharged if we had an independent asylum decisions board. That should be supplemented by an independent centre for documentation and information on countries of origin. I hardly expect that the present Home Secretary, or indeed the rightwing tabloid press which has been mentioned, will take such suggestions very seriously. Some future government, perhaps, may find them useful. Meanwhile, I plead for steady improvements in asylum practice and for close teamwork on all the issues thrown up by trafficking. I am certain that this Bill needs major changes and wholesale improvement.
Baroness Kennedy of The Shaws: My Lords, I start by apologising to those on the Front Bench. I was slightly late in arriving for the debate because I was delayed in court. I apologise and I meant no discourtesy. Happily, however, I was able to hear the end of the speech of the noble Baroness, Lady Anelay, and the speech of the noble Lord, Lord McNally. However, I apologise to the Lord Chancellor.
I have great misgivings about the Bill. I urge upon those who are non-lawyers that this is not just a matter for lawyers; it goes to the heart of our legal system. I think that the noble Lord, Lord Clinton-Davis, put it so powerfully when he said that, coming from this Government, the idea of an ouster clause removing judicial review should never have seen the light of day. I want to reiterate that it is shameful that we even considered it and that it was pushed through the other place.
It is very difficult to explain to people why the removal of judicial review is so serious. For lawyers, it is built into our souls; for ordinary people, however, it seems so obscure and out of touch with their reality. Many people feel that the abuse of legal processes, which can be costly and time consuming, should be challenged. They do not like the idea of appeals being strung out on spurious grounds. They want to see that dealt with. We would all, on the surface, agree with that.
As many in this House have said, however, the ouster clause is an affront to the rule of law. The term "the rule of law" is used as a mantra by politicians the world over, but people are not really sure what it means. It means more than passing laws through Parliament. It means more than that because there is no discipline in simply abiding by laws which you yourself have passed. There have to be norms against which those laws must be tested. We now have those human rights norms, which are the template against which the rule of law should be tested.
The ouster clause is an affront to the rule of law because it takes away from us as citizens, and from those whom we should be protecting, the right to say, "There may have been an abuse of process here". We should keep telling people that we in Britain should be particularly proud of the rule of law. It was developed here in this country so many centuries ago, to prevent abuse by the monarch and those who governed us and to put checks on power. It meant no one is above the law. Today, that means all those who govern us and all those who make decisions that affect our lives.
We have exported that principle around the world, not just to common law jurisdictions but to everywhere. Every nascent democracy is being encouraged to embrace the rule of law. It has to be a full-blooded rule of law. What comes through in this legislation, however, is the fragility of the Home Office's hold on that concept.
When people ask me what judicial review is about, I try to explain that it is not a new invention but comes from our long common law history. For centuries, prerogative writs such as habeas corpus could be used to protect the liberty and freedom of the people. Over the past 30 years, however, it developed and got the new name of judicial review becauseand this is a great credit to the labour movementpoor people were able to get good lawyers to defend their rights and to develop a body of case law around abuses of power. In recent times, we have also seen governments acquiring ever more powers to interfere with people's rights.
Judicial review has become crucial within our justice system. I say to my colleagues on this side of the House that it is being used to particularly good effect by those whom we have always said we were concerned to protect. Judicial review has been used to protect the right to protest, to quash police orders which prevented demonstrations in important areas of the freedom of speech. It has been used to supervise the meaning of criminal laws. In fact, I remember it being used to challenge the validity of by-laws at Greenham Common. It is used to review mental health detentions. It was used to quash the government attempt to ban trade unions in GCHQ. At a higher level, that situation was turned round. However, the challenge and the public debate on it were very important.
We are faced with another example of something about which we should be very alarmed; namely, that legal principle is pushed to one side in the interests of short-term, attractive propositions. That abandonment of legal principle for short-term gain has long-term costs. It is a slippery slope, because where does it go next? The fact that we seem to have little grasp of what the rule of law means and of what principles are fundamental to our system is a matter that should concern us all.
Repeatedly, the Home Office tries to rectify problems that occur at first base, either in policing or in the immigration services, by interfering with justice processes. That is never the remedy for failure at the first decision-making point.
We see incredible schizophrenia on the issue of asylum. The Government have done many positive things in relation to racism, yet the rhetoric about false claims and abuse of the system feeds the very thing that we despise. The Home Secretary appears to believe that if you talk up a storm of toughness on issues, you can slip some decent change through under cover of darkness. He is wrong. That does not work. It only stimulates fear and intolerance among the general public. Even to talk of taking children away from their families, although we are told that it would be in the most extreme of circumstances and very rare, sent tremors of shock through the families of those who are awaiting decisions. The terror that that presents to people who have lived in abusive systems is quite disgraceful.
I fear that the Government are allowing the agenda to be set elsewhere. Right-wing tabloid newspapers are beasts whose hunger can never be sated. When the rhetoric that we have been hearing is insufficiently challenged by government, we see a shrinking of the space in which good things can be done, a shrinking of the space in which sensible debate can take place. I therefore urge Ministers to spend some time at charities such as Medical Aid for the Victims of Torture or the Refugee Council. They should spend time with people who are fleeing countries where they have been abused. That would remind them why the discourse of human rights should be filling our debate. Good politicians make the political weather. They do not respond to populist demands. I am afraid that the Bill is an example of the government responding to populist demands. We should revisit it, because many of its proposals are a source of shame to us.
Lord Phillips of Sudbury: My Lords, I shall address my remarks to a particular aspect of the Bill and our debate; namely, legal aid and access to legal services for immigrants, whether they are asylum seekers or straightforward immigrants. In doing so, I should declare an interest because my firm has been active in that kind of work almost since I founded it in 1970 and we hold a legal aid franchiseat least we do at the moment, as, sadly, we are about to withdraw from it because of the proposed changes in the legal aid system to which I shall refer shortly.
I at least acknowledge the enormous difficulty of the subject that the Bill addresses. While, on the whole, I feel sorry that my political career started so late and is going to be so short, and wonder how I would have responded to the weight of office, I am quite glad not to be handling this Bill. It is an extraordinarily difficult collection of issues for any politician in any party, and particularly at this time, to have to confront. Strongly though I feel about some of the inadequacies of the Bill, I absolutely make no charge of racism or other unworthy sentiments on the part of the Home Secretary or his Ministers. What they are seeking to do with which I disagree comes from a lack of understanding of how the proposals work out on the ground, particularly in legal terms. However, I accept that the pressure on the staff of the Immigration Service is enormous. Many young and inexperienced people are trying to deal with matters of life or death for those concernedlife or death in terms of poverty; life or death in terms of abuse if they are forced back to whence they came. By the same token, I hope that the Government will acceptI know that the Minister will do so because she has experience of these mattersthat it is a very difficult task for the lawyers. It is one of the most difficult areas of work in the whole calendar of legal services.
I turn now to another statement, made by somebody who has spent many years dealing with asylum cases. I thought it would be helpful to the House and to the Government if I were to read out what he says about that first substantive interview. He states:
I do not need to expand on the fact that a lot of claimants are traumatised, or, if not traumatised, extraordinarily unsettled. They do not know the country to which they have come, do not speak the language fluently or at all, are often in need and cut off from their relatives and friends. They are in a high category of legal need.
That is one change proposed under the legal aid regulations. Another is to confine the amount of legal service that can be rendered to a claimant to three hours in respect of an immigration case and five hours in respect of an asylum case. That may sound a lot of time to those who are not lawyers, but in that time the legal representative will have to get to the interview, as one often has to do; try to coax from a worried, frightened and often inarticulate person, who is usually not fluent in the language, his or her story and case; find witness statements to back it up; get evidence, which he or she may not have kept with him or her for all sorts of reasons; get reports from doctors if it is a case of torture; get reports from other
The point that I am making is that the Bill cannot sensibly be passed by this House unless we have much better legal aid provision than is currently contemplated. If the regulations are passed on Wednesday, I shall in effect seek to strike them down by introducing clauses into the Bill to do something about that.
One may compare the procedure for immigration and asylum processes with that for any domestic criminal case. We all know that the PACE rules entitle anyone to be represented by a solicitor when he or she is interviewed by the police and when a first statement is taken. Crucially, that will be denied under these new rules. But that is only the first step: afterwards there is a court case, in which the person concerned has the right to go before a bench of magistrates or a Crown court and give evidence and make his or her case. That right will not be available in the cases that we are discussing; the interview is the last chance that a claimant will have to put his or her case personally. If one contemplates that process, and all that can ensue from a decision that can be perverse or simply wrong-headed, I believe that most of the points made against the Bill have been well founded.
Finally, I hope that the House will have regard to the provisions of Clause 7, which relate to claimants' credibility. In my view, that clause provides a presumption of incredibility as regards anything said by or on behalf of any claimant. I shall return to that matter when there is more time, but I commend it to your Lordships' attention.
The Earl of Sandwich: My Lords, whenever there are terrorist outrages or new anti-terrorism measures are proposed, asylum seekers tremble at the prejudice that enters society and threatens their very survival. In approaching this Bill, which contains very specific new measures to control and even to criminalise asylum seekers, legislators and adjudicators must remember that those affected are already living in a climate of hostility and considerable ignorance. The noble Lord, Lord Parekh, has already referred to the constant tightening of the screw. Those who are persecuted, or claim to be so, demand at least the same standards from our judiciary as the rest of our population, who, under the new anti-terrorism terminology, now seek security from others almost as a form of privilege.
That said, there are one or two very important elements in the Bill. I particularly welcome the new trafficking offence in Clause 4. As a council member of Anti-Slavery International, I am very pleased that the
However, as my noble friend Lord Hylton said, what about protection? Why has that been left out? It is no good concentrating on the crime if one is not also paying proper attention to the victims. Countries such as Italy are far ahead of us. In the United States, victims are even given residence and work permits in return for co-operation. What are the Government planning in that regard? There should be better balance in legislation and a new clause introduced. For example, are there plans for more Home Office support for those excellent non-governmental organisations providing safe houses, at the very least?
On the larger question of migration, I am sorry that the Government's plans for managed migration form no part of this Bill; indeed, they seem to have stalled. I understand how difficult it is to proclaim a positive agenda against the current media background. I hope that there will be some opportunities at Committee stage.
The passport offence in Clause 2 is a retrograde step, as has been argued, because, by definition, many persecuted claimants in a first interview either do not have access to documents or have come in with false papers. Some are simply in the power of traffickers. The Government are simply ignoring Article 31 of the 1951 convention.
Many people feel strongly about the matter of failed asylum seekers in Clause 8, so I shall not say much. There is a question of local authority funding when social services are already under pressure. It is a moral issue that no one in this community should be left destitute. Under Section 55 of the 2002 Act, 200 more destitute people have arrived every week in London. Two out of three asylum seekers are still in-country applicants, so the Government's deterrent strategy is plainly not working. There is also the matter of the reduction in the access to legal aid, as has been mentioned, which is bound to increase destitution. The Medical Foundation has brought up some good examples, which we shall refer to at Committee stage.
Clause 14 and the matter of appeals is the major concern today. We are all relieved by the removal of what amounted to a dangerous precedent, although it is very unclear whether the concession means the wholesale deletion of the clause, as it shouldnot least, because so many eminent judges and lawyers have spoken against it. The noble and learned Lord, Lord Steyn, has made the ultimate comment that the Bill attempts "to immunise manifest illegality". Several have referred to the poor quality of decisions,
Like others, I picked up a much more fundamental concern about the continuing culture of disbelief in the Home Officeand, indeed, in the tribunal itself. That atmosphere will not go away with the replacement of the tribunal. Some adjudicators feel that the public climate turning against asylum seekers is actually affecting judgments. One adjudicator, to whom I have spoken personally, said:
That is not just a worry of a few adjudicators. In Arshad v Secretary of State in 2001, Lord Justices Laws and Waller both refer to the lack of even-handedness and consistency on the part of the IAT. Lord Justice Schiemann cited that in Oleed v Secretary of State 2002. Those references do not amount to an open criticism of bias but at least they suggest an unease inside the judiciary about the validity of some of the judgments. The noble Lord, Lord Avebury, has referred to the quality of the adjudicators themselves. Whether the continuing culture of disbelief is driven by new government policies of deterrence can be debated, but given the general direction of those policies, it seems fairly obvious to me that it is.
Clauses 18 and 19 concern removal and detention. I hope that the Minister will take this opportunity to update us on improvements in the detention estate. For example, what progress has been made with accommodation centres and the new smaller model proposed by the Refugee Council? As a patron of the Haslar Visitors Group, I remain seriously concerned about conditions in so-called removal centres.
The word "removal" is still a misnomer. The average length of stay at Haslar is still five months and some stay more than a year. The improved accommodation proposed is welcome, but it does not reduce the waiting time or guarantee quality.
Improving initial decisions means better information. I hope that the Government will consider the proposal for an independent documentation centre. White lists have not helped; they can even hinder. The most up-to-date information is essential. Even in safe third countries, there are always threats from non-state agents. I give the example of the Kurdish people, who may easily be returned from Germany, although Germany is classified as a safe country.
So consultation on the Bill has not been nearly as good as it was last time. Nevertheless, on some issues, it is fair to say that we have a listening Government. They have backed down over Zimbabwean nationals under UN pressure. The trafficking clause has already been mentioned. There is a possible rethink of accommodation centres. So it is reasonable to expect that they will listen today and in Committee and amend the Bill. I also appreciate that governments have to be seen to be active, although they cannot always convince themselves that their actions are legitimate.
Baroness Gibson of Market Rasen: My Lords, undoubtedly, there have been major problems with initial decision-making on asylum and immigration issues over the years. Undoubtedly, it is the Government's job to ensure that any asylum and immigration system operates fairly, competently and robustly. Undoubtedlyit should go without sayingthere must be no knee-jerk reactions to those who voice popular prejudice. Any policies in the field must be well thought out and capable of meaningful implementation.
Yes, the Bill has its flaws, which many of your Lordships have emphasised today. But that is nothing new. All legislation is flawed when we first receive it in this House. Indeed, it is our key and important job to improve it, and we will. Perhaps it should not be, but it is.
The Government have told us that they are in a listening mood and this Second Reading gives us the chance both to raise the issues about which we are worried and to point out where it strengthens current legislation and fills gaps in it. It is always easier to criticise than to praise. Therefore, before I turn to the Bill proper, I shall pay a brief tribute to those at the sharp end of our legislationthose whose job it is to assist it bona fide asylum seekers and immigrants by sifting the genuine from the mass of overall applicants. That is not an easy job.
Recently, with other parliamentary colleagues, I visited the fast-track reception centre at Oakington and saw its procedures in action. Together with my noble friend Lord Dubs, I sat in on an interview with
The atmosphere at Oakington was not one of oppression or fear. The workers in Oakington and other centres and the agencies involved in the field of asylum and immigration are carrying out difficult work on our behalf. We should not forget them in our deliberations. Nor should we heap all the blame for weaknesses in the system on them. If there are weaknesses in the system, it must be more the fault of the politicians than those who work in our asylum and immigration services. It is too easy to criticise those who work in establishments. Yes, I think that we must accept some responsibility ourselves.
Whether we like it or notI do notmany of our fellow citizens believe that there are still too many immigrants arriving and staying in the United Kingdom. Emotive words, such as "flooding", are still bandied about freely and most irresponsibly. There is still a great deal of muddle about legislation relating to asylum seekers and immigrants, economic or otherwise. I believe that some of that muddle may be deliberate.
Certainly, some of the muddle has been fuelled by lurid press headlines and less than accurate media reporting. Irresponsible and sensational headlines designed to sell newspapers rather than impart accurate information obviously have an effect on readers. Of course, the worry is the disturbing impact that such reporting can have on the lives of those who are currently members of our community.
I have the pleasure of knowing a prominent person and his family who came to this country 30 years ago. Since then, they have worked within and on behalf of their local community. Recently, they have experienced the impact of negative feelings about asylum seekers and immigrants. The family has felt a backlash against and prejudice towards them from people they have known for many years. A hostility has entered their everyday lives. Obviously, it is unnerving for them and, both in race relations and economic terms, it is bound to be detrimental to the community as a whole. That example and others serve only to reinforce the necessity for accurate reporting, coupled with a clear understanding of what we wish to achieve through our legislation.
Clause 4 was mentioned by two noble Lords, but it has not been highlighted by the media. However, it has been warmly welcomed by a number of organisations, including the Refugee Children's Consortium, which includes many prestigious organisations. This is new legislation to cover a growing problem throughout the world; that is, the trafficking of people for
I first became more knowledgeable about the practice when I visited a number of organisations, including the National Criminal Intelligence Service, while taking part in investigations by EU Sub-Committee F on which I served, which looks at issues surrounding immigration, among other matters. I learned how the trafficking of women and girls in Europe has greatly increased over recent years. I heard that all the organisations involved in fighting that evil recognise that they are only scratching the surface in their efforts to catch the traffickers.
The story of one young Romanian woman illustrates the plight of the girls. She was a bright student in her late teens. In Romania, she met a young Romanian man who had recently returned from England. He told her about the opportunities in the UK and offered to help her enter the countryillegally, as it turned out. She came, and within a week she found herself in a seedy house with other young women, some of whom were very young indeed. She was imprisoned and a succession of men visited her day and night. If she did not provide the services required, she was severely beaten. She was one of many, many young women without hope and without help.
The Bill tackles that evil. Clause 4 covers the trafficking of people for exploitation, who are referred to as "passengers". It also covers those who assist traffickers to carry out their horrific crimes and those who arrange the departure of the passengers from the UK when the trafficking ring is discovered and, therefore, there is a need to transfer the passengers to another country to carry on their vile trade.
The Bill also covers illegal activities surrounding organ transplantation. It outlaws any inducement or pressure on individuals, many of whom are impoverished, to sell their organs to those people rich and unscrupulous enough to buy them. The Bill is designed to protect the most vulnerable; that is, people with little to sell except parts of their body and those who are desperately in need of protection from brutal and manipulative people who feed off the plight of unfortunates.
I support the questions raised by the noble Lord, Lord Hylton. I welcome Clause 4 and look forward to its implementation. I only wish that the media had chosen to highlight it or had given it even a little positive coverage. This clause brings hope and help to extremely vulnerable people. Surely, that is worthy of plaudits.
The Lord Bishop of Worcester: My Lords, I am happy to associate myself with the noble Baroness in welcoming the provisions against the trafficking of children particularly, though noting that the Refugee Children's Consortium draws attention to other
However, I have a more fundamentaland perhaps less usefulcontribution to make to this debate. Every few months I meet the person in my diocese whose job it is to provide counselling services for clergy under stress. She provides me with the raw statistics of the number of referrals: sometimes they go up and sometimes they go down. Every time, we have a conversation about which would be good news. This came to mind as the widespread welcome was given to the decline in the number of asylum seekers coming to this country. Is it good news? I am not so sure.
If it means that the world is a safer placethat there is less suppression and violence, that fewer people live in fear of their livesthat is a very good reason for being glad that the number of asylum seekers is going down. If, however, what it means is that this country, in common with many other countries, is constantly ratcheting up the fear involved in the process of migration and acceptance, and that people in oppressed countries are reflecting on whether their fear of that is greater than their fear of what they are enduring, then that is not such good news. I am far from sure that it is the former.
Just before the last general election, three groups of 10 Church leaders went to visit the three leaders of our main political parties in order to talk about the subject of race and how it might affect the coming election campaign. I was in the group that visited the Prime Minister, and remember saying then that I wondered whether the Government should do more to enlist public support by providing real education about the character of the asylum phenomenon and migration in the contemporary world. He and the then Home Secretary seemed to think that this would be a good idea, but I do not think anything along those lines has yet happened. What concerns me is that, whereas the noble and learned Lord, Lord Falconer of Thoroton, said that we need finality in the asylum process at an early stage, I long for some finality in the production of asylum laws. This Bill provokes in me the reflection, "When will this end?".
I welcome of course the provisions against trafficking. However, when my grandmother spent the Second World War in hiding in occupied Franceand, when her husband died, had to bury him illegally in the gardenshe had to pay an awful lot of money to the people who were hiding her, because there were people making money out of that. If we suppose this was entirely unjustified in the circumstances of the Third Reich, we need to remember that the rhetoric being used in this country at that time was not altogether friendly, and governments had to find resources of courage to be welcoming.
When I read the clause about the withdrawal of support, I remember the story I grew up with as a childthat of my mother arriving in this country and being told to go to the bank with one of those large, white £5 notes (the only money she had), to have it changed into £1 notes. The bank clerk made the
The account of the noble Lord, Lord Hylton, of what the process is actually liketogether with the comments of the noble Lord, Lord Phillips of Sudbury, and the noble Earl, Lord Sandwichis something into which we need to enter with imagination as we contemplate a Bill of this kind. What concerns me is that this Bill is one in a series of constant mis-statements of the problem. Of course there is a problem about trafficking, and about illegal and uncontrolled migration. These problems exist, but they pale into insignificance against some other problems to which I wonder who is giving attention.
Who is giving attention to finding how many people are sitting trembling in refugee camps in distant places, or enduring unbelievable oppression because of what they have heard about the processes which they will have to go through if they are to attempt to flee and come to a different country? Is not that a problem? How many people have been returned as a result of the draconian procedures we already have in place? Do we know and do we mind? Is that a problem about which we need to concern ourselves, and about which the public need to be educated?
The Refugee Children's Consortium rightly says that refugee childrenthe children of asylum-seekersare, before anything else, children. The Disability Action Group rightly says on the subject that asylum seekers with disabilities are first and foremost people with disabilities. I do not accept, most fundamentally and perhaps least usefully for the deliberations of the House, that the Bill correctly states the problem. The problem is a world in which, for some people, migration seems the only option.
Of course, on the periphery of that ministry assembles itself a dark penumbra of criminality and sheer profiteeringbut it is not the problem. It is the symptom. Those symptoms that the Bill addresses are only symptoms, and the problem remains not only unaddressed, but substantially undiscussed in the society of which we are a part. I regard that with the utmost seriousness.
Too many people have needed to speak already about Clause 14. I will say only that I am glad that it can be done away with, but I hope that it will never be forgotten. I feel quite sick that it was ever suggested.
I have wanted to say that I confront the Bill not only with some personal experience of growing up in households that talked about what migration was like. I speak also as someone who was briefly chair of the asylum committee of the Refugee Council, and as someone who has close friends working with scant resources in the west Midlands in the area of integrating, helping and supporting asylum seekers and refugees. That kind of experience leads me to say of the Bill that it simply mis-states the problem.
Lord Corbett of Castle Vale: My Lords, the whole House will be grateful to the right reverend Prelate for coming at the Billdare I say it?not as a lawyer, but with experience from another angle. I do not believe that the Bill belongs to lawyers; it has another dimension. I suggest to noble Lords that the Bill needs to be seen against the background of widespread and sustained public perception that the present system for handling asylum claims is failing. I did not state that as a fact; I said that it was a public perception.
In one recent poll, 36 per cent of respondents named asylum as their main concern. That is almost unbelievable. Every other poll tells us that the main concern is the National Health Service, education or transport. I want to say to your Lordships, particularly those who are lawyers, that those are the realities that Members of Parliament face day by day and week by week as they go back to their constituencies and meet members of the public. It is a challenge for us as well. The Government and Members of both Houses of Parliament have a duty to respond to such concerns. Unless we do, the mood of cynicism, falling voter turnout and all the rest of it will follow and accelerate.
It is not enough to condemn those who fish for votes in these waters as racists and bigots, although many are. It is not enough to condemn the bias and deliberate misreporting, day by day, of such issues by the Daily Mail, the Daily Express and others, although we should do so. We need better to understand what tempts and pushes voters into the clutches of the British National Party, not least when we prepare to mark the 60th anniversary of the Normandy landings, which presaged the destruction of the fascism that bodies such as the BNP embrace.
Too many people outside of these walls feel unheard and unrepresented on this and associated matters. There needs to be an open debate around these matters, so that we can try to reconnect with the public and their concerns. Those of us here have a responsibility, as those in the media doas well as the faith groups, the trade unions and the voluntary organisationsto encourage and enable an honest, informed and mature debate, and I hope that this can begin to happen around this Bill.
I share with many noble Lords admiration for the work of the Immigration Advisory Service, the Immigration Law Practitioners Association and other sundry groups working in this area. In turn, they need to acknowledge public perceptions about asylum claimants and help to meet and explain them.
Clause 14, which, as we know, would have removed all supervision by the higher courts of all immigration appeals and not just asylum, has rightly attracted considerable opposition. In terms of public perception, many people do not understand how appeals can go endlessly on and on with the taxpayer seemingly footing the bill. It is the perceptions that matter. So the Government, like their predecessor in November 1992, are right to try to find a way of shortening the appeal process consistent with it
Much has been made of proposals in Clause 8 of the Bill to remove benefits from asylum claimants who have exhausted all appeal stages and declined the offer of an assisted return homewhere this can be safely achievedusually with the help of the International Organisation for Migration or the UNHCR.
Again, in terms of public perception, many people do not understand why people are not automatically removed when asylum claims fail. This is not straightforward, and I do not think that there is enough explanation. Some countries refuse to accept returning nationals. We rightly insist that it is safe to return failed claimants. There are difficulties in confirming a claimant's nationality and getting it confirmed by the country against which it is claimed, and so on.
If we are to win better support and understanding for the way in which we carry out our responsibilities, as we should under the 1951 UN convention, there must be a better system to return failed claimants. I ask my noble friend Lady Scotland to confirm my understanding that voluntary returns will be offered only to countries, or parts of them, where it is safe and that unless this can be achieved, no returns will be made and benefit will continue until alternatives have been found.
I do not want for a minute to sound harsh or uncaring, but those whose claims have been refused also have responsibilities, not least where children are concerned. It would be wrong to allow people in this position to seek to use children as a shield against safe return. It would also send a misleading signal to the people traffickers: if you stay around long enough in the United Kingdom, despite your claim failing, you can stay anyway. Building and sustaining a fair and efficient asylum system depends on a number of factors, not least the quality of the initial decision. The Government are aware of that and, as the UNHCR says, they deserve to be commended for their,
I hope that in the same spirit we can work together to improve the present system, both for the benefit of asylum claimants themselves and to better acknowledge and respond to public concern in this area.
Like several other noble Lords, I welcome the introduction of Clause 4, which will punish people who traffic. I understand that, in organised crime in Europe, the trafficking of humans has superseded drugs trafficking in terms of financial remuneration and importance. This is therefore a timely initiation into legislation.
The principles that should govern the immigration procedures include the need for an effective initial decision on the applicant's case and an expeditious and fair process. If applicants are found not to have a valid claim, it is important that they be returned to their home country, if public confidence in the system is to be maintained. The noble Lord, Lord Corbett, has just referred to that.
We must also be cautious in our approach and remember that the predominant reason that immigrants come to this country is conflict in their home countries, as evidence adduced to the Commons Select Committee showed. Immigration flows follow conflict in countries; they do not depend so much on the level of poverty or development in a country. We should bear in mind that conflict is the predominant feature.
We need to act sensitively. I remember well speaking to a young woman from Sierra Leone who described to me how her sister had been toyed with by men in uniforms with guns. The men threatened to cut off the woman's hand or arm; in the end, they decided to kill her. The young woman to whom I spoke was still very, very upset by what had happened.
I used to play Scrabble with a young man, who I knew for a while. He was an excellent Scrabble player because he had been kidnapped in Sierra Leone and kept in the jungle for several months, where he and the other captives, who were doctors and so on, passed the time by playing Scrabble. He was an intelligent young man but had been clearly damaged by the experience. He fell back very much on the Koran, always listening to it on tape and finding succour through that means. Many such people have had traumatic experiences and must be dealt with extremely sensitively.
I welcome the principle of returning to their home countries applicants whose claims have been found to be false, where it is safe to do so. In principle, therefore, I welcome Clause 8, but I am very concerned about how it would work in practice and the consequences. I look forward to reading the correspondence from Beverley Hughes to the noble Baroness, Lady Anelay, to gain reassurance in the area. However, I am very concerned that real consideration is not given to how the provision will work in practice. Several noble Lords referred to the lack of consultation on the Bill. The withdrawal by the noble and learned Lord the Lord Chancellor of the central piece of the Bill during today's proceedings indicates that not enough thought has been given to these proposals. We need to look very carefully at the implications of Clause 8 and the
The Government have acted admirably as regards the care system in introducing much greater funding to this long-neglected area. The latest programme is entitled "Choice Protects". It is entitled "Choice Protects" because each child has a different need and should be in the right placement, whether it is the right foster carer or the right residential children's home. The problem is that we are short of 6,000 foster carers, just in England. We have high ideals about what we want to do, but we are stuck with the work forcethere are not enough people to take in these children. What implications does this measure have for that? We need to think very carefully about that.
Noble Lords have referred to Section 55 of the previous immigration Act. We received much literature about how that has been implemented. While that Bill was proceeding through the House, many assurances were given that people would not be made destitute and that there would be sensitive application of the law. But it appears that many people have been made destitute and we need to reflect on what has happened there as we think on this clause.
I remember another young man whom I knew for several years and with whom I studied for a short time. He came to this country from Eritrea at the age of 10 and lived with his sister and cousins here. He was a very bright young mana member of MENSA. He went to University College, got a degree in engineering, led the college football teama very gifted young man. Sadly, at the age of 20, when I saw him again, he was drinking and taking drugs, and really going to the dogs. My perception was that this was because he had been without his parents for so long. I would be very concerned if this clause led to children being separated from their families and their parents.
We need information on the numbers of families that the Bill is likely to affect. We need to know that the Government will have exhausted all the other possible means of removing these people. The Commons committee emphasised that more needed to be done by the Government to encourage voluntary returns and it put forward a number of proposals to encourage that. I hope that we may discuss those proposals and see what the Government's response has been. I look forward to working with the Government on this legislation. As was recognised, there was a single lack of consultation leading up to the Bill, so I hope that proceedings in your Lordships' House may allow for greater thought to be given to these very important measures.
Lord Plant of Highfield: My Lords, like my noble friend Lady Gibson, I think there are some good things in the Bill. I want to concentrate on the things I found troubling in the same way as other noble Lords have done. I should say that I am a member of the Joint Committee on Human Rights and I endorse the report made by that committee on the Bill in February.
Before coming into the House this afternoon, I was planning to concentrate on the issue of appeal in Clause 14. However, following the speeches of my noble and learned friend the Lord Chancellor and the noble and learned Lord the Lord Chief Justice, and the elucidation of the role of administrative courts made in the remarkable speech by the noble and learned Lord, Lord Mackay of Clashfernwith which I very much agreedI am now much more settled over the issue of appeal. That is on the assumption, which I took from the speech of the noble and learned Lord, Lord Mackaythat the administrative court as a high court will be independent of the tribunal. Therefore, on that basis, I think I am reasonably happy.
There are some issues that I want to take up. I will return to the issue of the role of the administrative court. In paragraphs 67 and 68 of the Joint Committee's report, published in February, we drew attention to the fact that it was perfectly possible to imagine that the Immigration Appeal Tribunal might, in specific cases, act in a way that was incompatible with convention rights. Even if we accept the Government's view that the number of such cases will be low, it seems to me that numbers are not of the essence in the context of rights.
If rights have been infringed, there ought to be some kind of remedy, either under Article 13 of the European Convention on Human Rights or under Section 7(1) of the Human Rights Act 1998, and a determination that a public authorityin this case, the tribunalhas infringed convention rights. That process should be carried out by a body independent of the public authoritythe tribunalthat has infringed the right. On the assumption that we are talking about an independent review, it seems that that qualm expressed by the Joint Committee is laid to rest.
That leads me to a second issue. Although it may be argued there are few immigration and asylum cases that would be concerned with civil rights, as understood in Article 6.1 of the ECHR, Articles 2, 3 and 8 impose a positive obligation on the state to take reasonable steps to protect rights against infringement. Mistakes are possible, given the conditions in which the Immigration Appeal Tribunal works, and that, again, is a good case for having access to a higher court.
I am not a lawyer, but to my mind the issue goes slightly broader than just the review by the court. I fully accept that the Bill will be amended by my noble and learned friend the Lord Chancellor, but Clause 14(7) says that the appeal tribunal may entertain,
To conclude, I want to say a few words about what seems to be the general constitutional position in relation to the Bill, a matter which has been discussed quite widely and critically in the debate. I want to dwell for a moment on the claim made by the noble and learned Lord, Lord Mackay of Clashfern, about constitutional values which, it might be claimed, Parliament would have overridden in passing this legislation. I very much agree with what he said because at the root of that claim is, I think, the role of the common law. The claim is twofold. First, the sovereignty of Parliament itself is a product of the common law; and, secondly, the common law, as both customary and judge made, has over the years embodied principles of constitutionality which, over the past generation or so, have been made much more explicit by judges exercising judicial review. Hence both parliamentary sovereignty and constitutional constraints are equally products of the common law and therefore Parliament should accept that its own sovereignty is in some sense constrained by the principles of constitutionality enshrined in the common law from which it derives its own authority and sovereignty.
I am pleased that, in respect of the ouster clause, the Government themselves have decided to operate within conventional understandings of the constitutional position. In my view, one of the great successes of this Government, although there is a long way to go, has been in the field of constitutional change. It would have been a tragedy if this Bill had ridden roughshod over basic constitutional principles derived from both the parliamentary and the legal aspects of the common law.
Lord Thomas of Gresford: My Lords, I am immensely flattered that the noble and learned Lord the Lord Chancellor has chosen my speech to be the first that he will hear in full. I am sure that he will take
Not only has immigration been a success, but so has integration. The noble Lord, Lord Parekh, pointed out that we have had economic migrants coming to this country for centuries, some of them with swords and axesthe Anglo-Saxons, as I recall. In addition we have had waves of people fleeing political and religious persecution. We have all integrated and benefited from that. I note that among the noble Lords who have spoken, nine have a Celtic background, nine have an Anglo-Saxon background, and the rest hail from a kaleidoscope of backgrounds which has added a great deal to this debate. I am alarmed when I read about fears of a plague of Roma people coming to this country because my Gypsy ancestors came here in the 16th and 17th centuries. They quickly integrated by adopting the harp as a way of earning a living. They would take harps around north Wales to play in pubs and clubs. Indeed, at night my friends have to restrain me from twanging the odd string in the Bishops' Bar.
We have all integrated and it has been a success. We are facing a problem only over a limited period of our history. All are agreed in this very informed debate that what is required is, as the noble Baroness, Lady Anelay, said, a "humane but efficient system". The noble and learned Lord, Lord Woolf, referred to a "fair and efficient system", which would sort out asylum seekers from economic migrants. May I just say this for emphasis: there is no reason necessarily to reject these economic migrants as failures. We ought to reflect that they may well have much to contribute to this country, even though they do not pass the asylum seeker test. They are risk-takers whose energy and drive to surmount obstacles to reach their goals is paramount. Such people have created successful and democratic societies in the United States, Australasia and elsewhere in the world.
The noble Earl, Lord Sandwich, was right to remind us that unfortunately the reform of immigration rules and policy has, for the moment, stalled. Coming to the subject matter of the Bill, surely this debate illustrates that the quality of the decision is crucial. As the right reverend Prelate the Bishop of Oxford said, finality is less important than the correct and just decision.
The noble Lord, Lord Brennan, pointed out to us the various stages of processing that an applicant for asylum has to go through. Under pressures of time, because there are very strict time limits placed upon applications, the applicant must first of all understand the procedures that he has to operate, and that may require interpretation. He then has to marshal his case, and my noble friend Lord Phillips of Sudbury reminded us that medical reports may be required to prove that the applicant has been subject to torture. He may have to prove, for example, that he is a member of a particular tribe in Somalia, because the Home Office will accept that if one is a member of one tribe
The applicant may have to show what the activities of a particular government arefor example, the current position of the government of Zimbabwe towards people of a particular political persuasion. He may have to deal with the loss of his documents and provide explanations for all that. Then he has to present his case to an unsympathetic interviewer. His legal aid, which your Lordships might think should be increased by a humane system, is now to be reduced, as the noble Lord, Lord Phillips, pointed out.
So that is the first step. Then there is the decision itself, and that is where the greatest delay arises: the initial decision is in the name of the Home Secretary, but it is in fact taken by a caseworker on the basis of the papers that are placed before him or her. My information is that such caseworkers are paid something in the region of £15,000 a year, which indicates to your Lordships the experience that such people have in taking these particular decisions. Some of them, I am told, are graduates who cannot get another job, and produce very good decisions. Others are less fortunate. Some are immigrants themselves, who, having come into the country in this particular way, are thought to be good to help in these decisions.
So an appeals process is clearly necessary. This is the third stage of the noble Lord, Lord Brennan: the appeal to the adjudicator. The scandalbecause it is a scandalis that the Home Office is represented in only about 60 per cent of those cases, and, with the limitations now being placed on legal aid, there is now a considerable chance that the applicant will be unrepresented as well. I am told that adjudicators have been instructed, if they are presented with an applicant in person and nobody from the Home Office, to do the best they can. In such circumstances, as is the tradition of this country's legal profession, the judicial figure will do his best to ensure that the applicant's case is properly put.
But that takes time, and points that may be made by the Home Office against an applicant are not made because there is no one there. I was amazed to be told that 40 per cent of appeals from the adjudicator to the tribunals are by the Home Office. Those appeals are brought because, very often, points adverse to the applicant have not been made and therefore the applicant has been successful. No doubt I shall be told if that statistic is wrong, but if it is right that is a disgrace.
There is a danger that if the principal indicator of the quality of a decision is the rate of success of asylum appeals, that will lead to cuts in legal aid, a single tier of appeal and an extension of the safe country concept. All those matters, plus the other problems to which the Bill gives rise, will make it more difficult to overturn the bad initial decision, and so the success rate of appeals will fall.
I have criticised the initial decision making and the problems that arise on appeal but, at the other end of the process, only 15 per cent of failed asylum seekers are returned. That is not the fault of the lawyers. Many people say, "We are not lawyers; we are not inflicted with that particular plague", but it is the Government's failure to organise a fair and just system for dealing with people who do not pass the asylum test that, again, is a matter of deep concern.
How does the Bill improve the position? The noble Baroness, Lady Kennedy, has given the history of the supervisory jurisdiction of the High Court. Under the prerogative writs, under the judicial review system, the court does not purport to take away from the decision-maker the right to decide in a particular case. But, traditionally, on judicial review the court ensures that the procedures have been just and fair; that the higher courtswhether the Divisional Court, the Court of Appeal or the House of Lordsset standards and that the standards they set affect the whole system all the way down to the initial decision. It is quality control; it is acting as a regulator. If they were called "Ofjudges", that would go down very well with this Government, who have "Of" this and that in almost every field.
But the Bill as drafted makes the tribunal the judge of the fairness of its own procedures. I know that someone in the pub in Gresford will say to me, "Does Parliament have no regard to the principle nemo iudex in sua causano one should be a judge in his own causebecause for 2,000 years it has been accepted that a tribunal is blind, or may be blind, to its own errors?". Therefore the proposals initially set out in the Bill conflict with the principles of the English common law which, where it is old enough, go back to the very start of the legal systems that we know about.
In addition, there is in the Bill an attempt to coerce people to do things. It will be an offence to enter this country without a passport, although the true asylum seekers are the least likely to have passports and papers in the first place. It will be allowed for support to be withdrawn from people in an attempt to encourage them to get out of the country and make them indigent. We are saying, "We don't want you". We are threatening to take people's children away from them to coerce them to do things.
I entirely agree that it is a difficult problem. But the Bill, I suggest, has been formulated in a climate of prejudice and bigotry. We look to the Government for leadershipfor resources of courage, as the right reverend Prelate the Bishop of Worcester said. The noble Lord, Lord Corbett, said that the public perception is that the system is failing. Notice that he did not say that the system is failing, only that the public perception is that it is failing. The public perception depends upon leadership. If the public
Lord Kingsland: My Lords, I cannot think of a worse area of the law to make the basis of an ouster clause than immigration law. We, mercifully, abolished the death penalty many decades ago; but the consequences of making bad asylum decisions are often to send people to their death. I am therefore greatly relieved that the Government have decided, on mature reflection, to think again about the ouster clause and Clause 14.
The Government's attempt to persist with the clause until now has had, I think, one lasting benefit to the country, which has been reflected in a number of speeches made this afternoon. If I mention only those of the noble Lord, Lord Clinton-Davis, from the Labour Benches, the noble and learned Lord, Lord Woolf, from the Cross Benches, my noble and learned friend Lord Mackay of Clashfern from the Opposition and the noble Lord, Lord Lester of Herne Hill, from the Liberal Democrat Party, I hope that other Peers will not feel that they do not deserve an association with what I am about to say.
Tonight we have had an important constitutional debate which was, if I may respectfully say so, very effectively summarised by the noble Lord, Lord Plant. He reminded us that the doctrine of parliamentary sovereignty is not an assertion by politiciansit is a doctrine of our courts. It is our courts that say that Parliament is sovereign. And in saying so, it is also our courts that determine what the limits of parliamentary sovereignty are. I would like to think that, when the noble and learned Lord the Lord Chancellor began to reflect on Clause 14, this factor played a part in his subsequent decision.
I suppose that in a free society there are two cornerstones: one is democracy and the other is the rule of law. The essential component of democracy is access to the ballot box for everyone. The essential component of the rule of law is access to the courts for everyone. Underpinning both these concepts is a society's deep belief in equality. Everyone has access to the ballot box; everyone should have access to the courts. The noble and learned Lord the Lord Chancellor has listened in the past few weeks to many things the judges and others have been saying about Clause 14. I should like to think that he reflected on the constitutional limits of parliamentary sovereignty; and if he did, I congratulate him.
Whatever motivated the Government's decision, it has illustrated to the countryand to all political partieswhat the limits of parliamentary sovereignty should be. The debate this afternoon has brought that out in an extremely effective way, and I believe it will have deep, long-lasting and beneficial implications for the quality of legislation in the future.
I have always believed that the ouster clausequite apart from being constitutionally improperis also unnecessary: if the Government can devise a statutory scheme which is fair, then the courts will exercise their discretion not to grant judicial review; and, therefore, the Government will not be faced with a series of re-applications to the courts on what is essentially the same issue.
There are three components to a fair statutory scheme. The first one is that, on matters of lawon alleged errors of lawthere ought to be an appeal from the tribunal to the Court of Appeal and, if necessary, to the House of Lords. This is particularly important in asylum matters because the law is so complicated. We not only have a large number of primary legislative measures, but we also have detailed rulesthe immigration rules, and immigration and asylum rules on appeals. Behind this, we have two very important public international conventions, the refugee convention and the human rights convention. This is a complex web of legal measures which will, inevitably, test the appeals tribunal, on occasions, beyond its capacity. It is, therefore, vital that the role of the Court of Appeal and the House of Lords is reinstated whatever else the Government propose to do with Clause 14.
I do not believe that this will be an additional cause of delaying the system. The statistics indicate that, last year, there were between 50 and 60 appeals to the Court of Appeal, and very few beyond that to the House of Lords. It must be right that that situationwhich is in the existing legislationis preserved in the Bill.
Secondly, as a number of noble Lords saidI recall particularly the speech of the noble and learned Lord, Lord Donaldson of Lymingtonit is vital to reinstate in the Bill the supervisory powers of the administrative court to deal with applications for leave to appeal from the decisions of the adjudicator.
The noble and learned Lord, Lord Donaldson of Lymington, was perfectly right. He mentioned a statistic that over the past seven to eight months about 550 applications were considered. He also said that a rather high proportion of those were allowed, a little over 20 per cent. That is a reflection, I suspect, of the quality of decision making at adjudicator level. The lesson that ought to be drawn from this is that the main focus for the Government in devising a new scheme for Clause 14 ought to be at the adjudicator/appeal tribunal level.
What the Government want to do hereand there is evidence for this because it is on the face of the existing Billis to concertina the existing adjudicators with the existing appeal tribunal. In principle, we on the Opposition Benches are not against that; but we are against a solution which does not improve the quality of existing decision making. If we are going to have a one-stop shop rather than a two-stop shop, then it is vital that the institution that emerges does better than the combined effect of the two institutions that we have at the moment.
It is premature to make detailed comments about what we think that ought to be. I think it better to wait for the Government to come up with their proposals. However, it would not be satisfactory to the Opposition simply to keep the adjudicators and abandon the tribunals. Something new has to be produced which meets the weaknesses of the existing adjudicator system. As a number of your Lordships have said, in my view quite rightly, what we want is a system that is both just and at the same time effective.
The other area that I hope the Government will look atagain, this has been mentioned by many of your Lordshipsis the various earlier stages in the procedure between the asylum application and its consideration by the Home Office, and the period between the consideration of the Home Office decisions and the consideration by the adjudicator. Those are areas of great delay. I am convinced that, with better administrative procedures, the delays could be substantially reduced.
Baroness Scotland of Asthal: My Lords, I think it was the noble Lord, Lord Thomas of Gresford, quoting the right reverend Prelate, who said that leadership needs courage. I think that your Lordships have had no lack of that this evening.
I very much welcome the tone of this debate. I think that the noble Lord, Lord McNally, said that perhaps we all need to apply a deal of humility in looking at the history of how this issue has been dealt with over a period of time and a number of years. I was a little more doubtful about the title he gave me as "chief charmer" for the Government.
The noble and learned Lord the Lord Chief Justice says, and I think he said it well, that the system needs to be fair and just and not readily susceptible, I think he said, to abuse. We respectfully and wholeheartedly agree. The truth is that we all want a balanced, fair and just determination; in that, the Lord Chief Justice and the right reverend Prelate the Bishop of Oxford are absolutely correct. We have acknowledged that delay and abuse have to be removed. The old adage that justice delayed is justice denied holds particularly true in cases dealing with asylum seekers who are subject to the anxieties and trauma of having to resettle after a period of real disadvantage.
Much has been said about the quality of the initial decision-making process. That was a theme taken up by the noble Baroness, Lady Anelay, the right reverend Prelate the Bishop of Oxford, and the noble and learned Lord, Lord Donaldson, among others. We appreciate that fact. The Government have made strenuous and successful strides to reverse the figures so as to demonstrate an enhanced quality of assessment and determination.
I can also reassure the noble and learned Lord the Lord Chief Justice and give him the assurances he seeks that our current arrangements on discipline and removal of judicial officers will continue and will not be removed without his concurrence. We also appreciate the Lord Chief Justice's anxiety about the provision in relation to the practice direction. We very much hope that this issue can be settled in a way that is satisfactory to him.
The right reverend Prelate the Bishop of Oxford raised the issue of legal aid, as did the noble Lord, Lord Phillips of Sudbury, and others. I can assure the right reverend Prelate and noble Lords that five hours refers to the time provided to ascertain whether there is a valid case. If more time is merited, more time can be provided. I know that noble Lords will have a full opportunity to debate those matters with my noble and learned friend the Lord Chancellor when he comes to address them in due course.
The legal aid regulations and provisions are of course extremely important, but they do not go to the root of many of the issues that we have been discussing today. I assure my noble friend Lord Clinton-Davis that the Bar Council and the Law Society have not been backward in coming forward with their comments. They have written to my noble and learned friend the Lord Chancellor on that matter and their views will be taken fully into account.
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