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The noble Lord said: My Lords, I hope to be quite brief. It is undesirable that, where reconsideration is ordered because an error of law may have been made, the case should be referred back to the same member of the tribunal who made the original decision to decide whether in fact he or she got it wrong the first time round. There may be exceptional cases where it is legitimate, but they are few and far between. It is also usually desirable that, where an error of law may have been made, the case should be reconsidered by a panel of three rather than by a panel of one.
It is true that under Schedule 5 to the 2002 Act the president of the asylum and immigration tribunal will have power to direct, where in his view it may be appropriate, that the case should be reconsidered by a different member of the tribunal from the original one or should be reconsidered by a panel of a different size. But it seems appropriate that the judge of the High Court or whichever is the appropriate court in Scotland or Northern Ireland who has actually heard the application and is therefore aware of the issues involved should have power not only to direct a reconsideration on the grounds of an error of law, but also to decide on the form of tribunal which is to hear that reconsideration.
I do not suggest that the judge should be bound to exercise the power, but in cases of this kind it would be appropriate for the judge, if he or she has clearly decided that it cannot go back to the person who made the original decision, to decide there and then who is to hear the reconsideration. I beg to move.
Lord Goodhart: My Lords, I apologise. The noble and learned Lord is quite right. The amendments are grouped together, but Amendment No. 46 is the substantial amendment. Amendment No. 45 suggests a minor point to make it clear that this provision should apply to both parties of the tribunal, not only to an appellant.
Lord Ackner: My Lords, will the noble Lord assist me on one point? Since the emphasis of the whole of this part of the Bill is on expedition, and since we are dealing with a point of law and a tribunal which is a qualified judge, why should not the judge himself make the decision that there was an error of law and the consequences are as would be appropriate? Why would it need to go back in every case?
Lord Goodhart: My Lords, I am pleased to be able to help the noble and learned Lord, Lord Ackner. I am sorry if what I said was confusing, but the purpose of this amendment is exactly that: it is to make sure that the judge who hears the application for an order for reconsideration should be able himself or herself to
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say, on the spot, "We need not bother the president of the asylum and immigration tribunal. I myself am convinced that this is a case which should not go back to the member of the tribunal who took the original decision. The issue is so important that it requires a panel of three". So I am grateful to the noble and learned Lord, with whom I think I am in entire agreement.
Lord Goodhart: My Lords, I am grateful to the noble Lord. There is an existing power for the president to declare that a case is sufficiently important to require it to be heard by more than one member of the panel. Therefore, if the judge is to be given a choice, he or she should be given the same choice as the president would have, which would include the power to direct that the case should be heard by a panel of three members.
Lord Kingsland: My Lords, Members on these Benches support the amendments tabled by the noble Lord, Lord Goodhart, save for one qualification. The noble Lord will see that Amendment No. 57A would require three members to be the normal number to sit on the tribunal,
Were that amendment ultimately to find itself included on the face of the Bill, I suggest that a slight modification would need to be made in Amendment No. 46 to new subsection (5A)(a) and (c). Subsection (5A) would have to read, "member or members who made the decision", while (c) ought to read, "or another panel of 3 members". However, the changes would be necessary only if the contents of Amendment No. 57A were to find their way into the Bill. I apologise to the noble Lord for not drawing his attention to this point earlier.
Lord Mackay of Clashfern: I had proposed to say a few words about Amendment No. 45, because I am not sure of the Government's attitude towards this amendment. I assume that, for the sake of brevity, they would want to have the case decided without the necessity of inviting the respondent to make representations. I think that Amendment No. 45 implies a right, or at least a power, to require representations from the other parties to the appeal.
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The point made by the noble and learned Lord, Lord Ackner, seemed to be that, if it is apparent that there has been an error of law, the simplest way to correct it is perhaps to make a new decision immediately which has the opposite effect. The problem about that is, unless and until the basic opening of the clause is changed, the only power in the court is to remit the case to the tribunal. If the point made by my noble and learned friend were to be given effect, some further amendment would therefore be required. I do not think that Amendment No. 46, moved by the noble Lord, Lord Goodhart, would have that effect.
So far as Amendment No. 46 is concerned, for my part I would be willing to take it that the judge hearing the case in the High Court would have these powers in any event. If there is any doubt about that, however, I see no reason why these amendments should not be made.
Lord Donaldson of Lymington: My Lords, if on review the judge decides that there has been an error of law, I do not think that it follows that the lower tribunal, with one or three members, would necessarily reach a particular conclusion. For instance, if the decision is that an irrelevant matter has been taken into account, it still leaves open the question of what happens when the relevant matter is taken into account. On the face of it, that would not be a matter for the High Court judge.
While judges are perfectly capable, when looking at a decision which overturns their own decision, of saying, "That is what that court says"they probably got it wrong, but that is beside the point"They have the last word, so of course I will follow it". We know, or at any rate those who are involved in the law know, that that is so, but the lay public do not. If there is a situation in which a decision is sent back to the original member, who then says, "Having taken account of the guidance I have received from the High Court, I still think that the answer is what I said it was", it is probably a perfectly possible answer but it is not one which would carry conviction with the public.
It would therefore be important that the judge of the High Court should consider very carefully before sending it back to the same member as had it in the first placeunless he is quite satisfied that the answer will be a different one.
The Countess of Mar: My Lords, there are occasions when it is appropriate to send it back to the person who made the decision in the first place. Sometimes that person will not have taken all matters into consideration and will need to be reminded that this should have been done and, if he had taken all matters into consideration, what then would have been his decision.
On the other hand, in most of the cases that have been through my hands, when it has been sent back to a lower level for a rehearing, it has been to a fresh hearing as opposed to a filling-in of what has already been heard. There is therefore room for both cases.
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