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Lord Filkin: My Lords, to come to the last point first: we have always been clear that these are pilots. They are pilots for a good reason, as we discussed at length during the passage of the Bill. Therefore, it is right and proper that the experience of the pilots is evaluated, reported on and discussed before we move forward on all-postal balloting. The right of an individual elector to opt for a postal ballot is already enshrined in law and we have no intention of retreating from that position.
Before we get overexcited about prematurely celebrating a disaster, we should make a distinction. Several things are going on at once. We have combined elections, which in itself is slightly more complicated for electors than a single electionalthough it is not the first time that that has happened. Moreover, we have all-postal ballots, which is bound itself to be a novelty to some people. It would be surprising if it were not. But that does not mean that one has a failed or a flawed electoral system.
Irrespective of that, we will receive a report from the Electoral Commission in mid-September, as it is statutorily obliged to report on its evaluation of postal ballots. That will give us an opportunity to discuss the issues again.
Lord Grocott: My Lords, with permission, later this afternoon a Statement on Iraq will be repeated by my noble friend Lady Symons, which will be taken after the completion of consideration of the asylum Bill and before the debate on the Housing Bill.
Clauses 1 to 13, Schedules 1 and 2, Clause 14, Schedule 3, Clauses 15 and 16, Schedule 4, Clauses 17 to 29, Schedule 5, Clauses 30 to 45, Schedule 6, Clause 46, Schedule 7, Clauses 47 to 50.(Lord Triesman.)
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
"(3) In determining for the purposes of section 1 of the Regulatory Reform Act 2001 (c. 6)(power by order to make provision reforming law which imposes burdens) whether any provision of an Act falls within subsection (4)(a) of that section (provision amended by an Act within previous two years), the effect of this Act is to be disregarded."
The noble and learned Lord said: The amendment addresses a potential problem in connection with the Regulatory Reform Act 2001. Section 1 of that Act gives a Minister of the Crown power to reform primary legislation that has the effect of imposing burdens that affect persons in the carrying on of any activity. Such reform is made by way of a regulatory reform order. Section 1(4) of the Act prevents a regulatory reform order being used to amend a provision in an Act that has already been amended during the past two years, other than consequential or incidental amendments. The Bill, of course, amends a number of Acts by repealing parts of them. Section 1(4) of the 2001 Act will prevent Ministers from making a regulatory reform order reforming parts of any provisions that have been partially repealed during the two years after the Bill receives Royal Assent.
I trust that the amendment's measures are largely self-explanatory. We recognise the arguments put forward by noble Lords in Committee that subsection 2(a) of new Section 103A was not as clear as we intended. That is why we have tabled Amendment No. 42A, which has the advantage of being a formula from the civil procedure rules.
The Civil Procedure Rule Committee, when considering the rules relevant for the purposes of Section 101 of the Nationality Immigration and Asylum Act 2002, decided that it would be appropriate to add the words "may have". That addresses the point that when dealing with an application on the papers the judge might not be able to be certain whether an error of law had been made. We wish to stick closely to the statutory review test, which already has the benefit of judicial interpretation.
Lord Kingsland: My Lords, in our original amendment, tabled on the first day of Committee, our test for review was more demanding, although it was predicated upon changes at the Home Office interview stage and the single-tier tribunal stage, which have so far not been forthcoming. So we will not contest it.
However, the Government will have to recognise that their amendment will have implications for their legal aid proposals. You cannot have a test for review consisting of the Government's new definition on the one hand, and a legal aid regime that gives legal aid
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only ex post facto for wins or near-misses on the other. That legal aid regime is clearly no longer appropriate. The list for provision of legal aid should clearly match the new government review test; otherwise the legal aid system will block access to rights now to be granted by legislation.
Lord Goodhart: My Lords, we feel that the amendment deals with the problem that we outlined in Committee. We are satisfied with its drafting. The noble Lord, Lord Kingsland, has rightly raised the question of legal aid; we shall speak on that when we get to the appropriate group of amendments.
New Section 103A of the Nationality Immigration and Asylum Act 2002, added by this Bill, imposes a draconian timetable on applications for review of tribunal decisions. It allows a period of five days, beginning with the date on which the appellant is treated as receiving the notice of the tribunal's decision in accordance with the rules. Frankly, that is a ridiculously inadequate period.
First, the date of the actual receipt of notice may be later than the deemed date under the rules, particularly if the now notoriously unreliable postal service is used. It is perfectly proper to include a deemed date in a Bill, because it prevents problems of uncertainty about when notice was received. However, a deemed date is acceptable only if the time as a whole that is provided is reasonable and it can be accepted that the deemed date may be a day or two in advance of the actual date of receipt. In other circumstances such as those in the Bill a deemed date is not acceptable.
Secondly, the period allowed is not even five full days; in reality, it is more like four. As the Bill is drafted, the day on which the notice is deemed to have been received is the first day of the five-day period. Therefore, even if notice is deemed to have been received on a Monday and is indeed received on that day, that constitutes the first day of the five-day period, and the second, third, fourth and fifth days are Tuesday, Wednesday, Thursday and Friday. So the application received on Monday will have to be submitted before the court closes for business on Friday afternoon. That is inadequate time.
Let us look at what needs to happen. The appellant's lawyer, if he or she has one, cannot set out grounds of appeal before seeing what the tribunal has said and the grounds on which it has decided the case. The lawyer will therefore have to read the tribunal's decision, to consider further the legal issues involved in the decision and possibly consult the clientthat may involve arranging a meeting at which an interpreter must be present. The lawyer will have to draft grounds of appeal, get the application in proper order and submit it to the appropriate court before it closes for business on the last
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available day. Lawyers are likely to be busy and have several cases running simultaneously, with the result that the one who handled the first stage may have other commitments, meaning that a new lawyer must be found to submit the application.
We recognise the power in subsection 4(b) of new Section 103D to extend the time, but that safety valve is not an adequate reason for allowing much too short a time for the basic period. If applications made out of time become frequent, it leads to unnecessary time-wasting and cost-wasting satellite arguments about whether there is adequate justification for the delay. Ten working days is quite a short period but would be just sufficient for these cases.
Amendments Nos. 51 and 52 follow on from the earlier Amendments Nos. 43 and 44. We recognise that there may be a need for power to vary the timetable by secondary legislation. But that power can be used not only to extend the time but to reduce it to a period shorter than that stated in the Bill. We believe that if it is used for that purpose, the order should require the affirmative resolution procedure. We feel that among the many defects of Clause 14, given that it is a considerable improvement on its predecessor, the extremely and unnecessarily short timescale that is provided for making the application is one of the worst. I beg to move.
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