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Lord Kingsland: My Lords, so many of your Lordships have spoken to the same effect on this amendment that I have little to add. We have added our name to the amendment moved by the noble Lord, Lord Goodhart, and so your Lordships would naturally expect me to support it, which I happily do.

We on these Benches have always been opposed to the five-day period for the reasons that the noble Lord, Lord Goodhart, and others of your Lordships have so eloquently expressed. In an amendment tabled in Committee, we suggested a seven-day limit. However, that suggestion was based on a number of assumptions about the rest of the Bill that no longer apply, of which I shall mention just two. The current appeals rules—that is, the rules of 2003—allow for the interests of justice to be taken into account when considering an extension of time. That provision is in paragraph (2) of Rule 16. We should contrast that with the test for extension of time found in Clause 14(6), which sets out the terms of subsection (4)(b) of new Clause 103A. The test is expressed thus:

in this case, it is five days—

I am sure that your Lordships will agree that that is a much more severe test for the applicant than the test under the existing rules.

Our second reason for supporting the noble Lord, Lord Goodhart, is that our suggestion—seven days—also assumed that oral hearings would be permitted in the review, where they were considered by the High Court judge to be in the interests of justice. In the absence of the ability to make such oral submissions, the quality of written submissions and their degree of comprehensiveness must be very high. We do not see how that can be achieved within the short period of five days.
 
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For those reasons and for others that have been amply expressed by your Lordships, we support the amendment moved by the noble Lord, Lord Goodhart.

Lord Filkin: My Lords, in responding to the many noble Lords who have spoken to the amendments, I thank those who paid tribute to the fact that the Government have listened to representations made in this House and elsewhere. That is appreciated. As a consequence, we have crafted a system that still enables us to achieve the essential thrust of the policy, while listening to the concerns that have been raised.

Amendments Nos. 43, 44 and 59 would extend the time limit for making a review application and for opting in under the transitional provisions from five working days to 10 working days. As the House knows, we wish to make the review process as swift but as fair as possible. We are confident that, in practice, five working days allows an appellant sufficient time to consult a legal representative and lodge the application papers for a review. It should also allow sufficient time for an applicant to opt for the review application to be looked at by the High Court under the transitional provisions in Schedule 2.

I shall explain why we have come to that view. It is important to remember that we are not talking about the appeal against the initial decision by the Secretary of State or entry clearance officer. The review is a process that we will put in place to allow a tribunal decision to be reconsidered, if there may have been an error of law by the tribunal that affected the tribunal appeal determination. In those circumstances, the shorter time limit of five working days best achieves the balance between speed and fairness.

The reason why we believe that the timetable is practical is that the grounds for appeal will already have been covered at the appeal before the tribunal. There will have been a clear statement of reasons for the appeal that will focus the appeal on the key points at the hearing. The process is not a rehearing of the case requiring new grounds but a process to allow errors of law by the tribunal to be corrected, if it affected the original appeal decision. That should not be over-onerous on the legal representative, as, first, the legal representative should already be familiar with the case through the earlier work on the appeal and, possibly, the initial claim to IND. Secondly, the kind of issues that we are talking about with regard to an "error of law" should be familiar to the lawyers from their experience of judicial review and statutory review. If there is a genuine exceptional reason why the application could not be made in five days, it is down to the judge to decide whether to allow a late application.

The noble Lord, Lord Kingsland, explained as elegantly as one would expect why he has moved from supporting a seven-day timetable to supporting one of 10 working days. When my noble and learned friend
 
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the Lord Chancellor announced at Second Reading that we would introduce measures to provide for oversight by the higher courts, he stressed that we would balance them with the aims of speed and reduction of abuse. We must bear those objectives in mind at the same time. It is important to ensure that there is a fast, end-to-end process. It is not in the interests of genuine appellants to drag out the appeal process. Shorter time limits would help to dissuade people from abusing the process or wrongly believing that they can.

Lord Kingsland: My Lords, I am grateful for the Minister giving way so courteously. I understand his point about expedition, which was made by the noble and learned Lord the Lord Chancellor at an earlier stage. But does it not fit ill with the refusal of the Government to include in the Bill either a limitation period for the period between the asylum application and the application decision by the Home Office or the additional refusal of the Minister or the Home Office to accept any time limitation between the end of the statutory review process and the moment of deportation? What relevance has five days within the appeal process if the Government have dug their heels in on those other periods, which often amount to years?

Lord Filkin: My Lords, I shall now relay the remarkable reduction in the overall speed of decision making that has taken place on asylum and immigration matters since 1997. I am sure that the noble Lord, Lord Kingsland, is well aware of the significant overall reduction. We are debating the specific time limit of the appeal in order to see whether we have allowed a process that gives an appellant an adequate time in which to put forward his or her case. With the leave of the noble Lord, I shall continue my explanation about why we believe that we have got it pitched right.

As I have said, we accept that there will be exceptional circumstances when, for reasons outside the control of the applicant and his or her representative, it will not be possible to lodge an application within the five-day time limit. The Bill recognises that and makes provision for applications to be accepted out of time in those circumstances. The discretion in doing so will rest not with the Government but with the High Court judge who is considering the issue.

Amendments Nos. 51 and 52 would make the order-making power to vary the time limits subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee scrutinised the order-making and regulation-making powers in Clause 14 and published its recommendations in its 15th report of this Session. The committee recommended that regulation-making powers under Section 103D of the 2002 Act, which concern new legal aid arrangements, should be subject to the affirmative resolution procedure. I have brought forward an amendment to give effect to that recommendation.

However, the committee did not recommend that the order-making power to vary time limits should be subject to the affirmative resolution procedure. If the order-making power is used, both Houses would have
 
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the opportunity to give detailed consideration to the order. If they felt it necessary, they could of course pray against it.

Perhaps I may turn to some of the specific points—

Lord Clinton-Davis: My Lords, I am much obliged to my noble friend the Minister for giving way. I am sure that he has had an adequate opportunity to advance all those arguments to the Law Society, the Bar Council and others, but would he care to mention who supports the Government where this is concerned? After all, the House is entitled to know that. When my noble friend advanced those arguments to the powers that be, what was their response?

Lord Filkin: My Lords, I was not privileged to be privy to all of those discussions with the relevant professional bodies. In response to the question about who supports the attempt of the Government to ensure that we uphold our traditions in this society of giving fair and proper consideration to people who apply to us for refuge and asylum, the public are clear that they want government and society generally to ensure that the abuse in the system is stamped out. There is strong support for that position, not just—how shall I put it?—among the more extreme elements of the popular press, but also among those who hold dear the tradition of this society, and its responsibilities, to consider applicants for asylum. That is my answer to my noble friend.


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