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Lord Kingsland: My Lords, I am not sure whether to conclude that the Minister completely missed the point of all the submissions which have been made by your Lordships, or if he simply did not want to know about them. I will leave it to your Lordships to reach your own conclusions. I will not repeat my speech, although the Minister did not answer any of the central issues that I raised in my submission.
I am most grateful to all noble Lords who contributed. I will, if I may, single out my noble friend Lord Newton of Braintree, who brought the telling argument of Lord Justice Leggatt to bear on the lack of logic of the Minister. The Minister seemed to suggest that, because the only grounds of appeal from the tribunal to the High Court are errors of law, the only people who are qualified to sit on tribunals ought to be lawyers. Yet the basis of all the arguments that have been deployed on this amendment this evening is exactly the opposite. It is because grounds of fact are not appealable to the High Court that we need to be confident that they will be properly determined at tribunal level. The Minister has simply not confronted that question, let alone answered it to the satisfaction of the Opposition. The noble Countess, Lady Mar, observed that this is the only tribunal that can send a person to their death because it does not find a story credible. That is particularly and conclusively telling.
I want to test the opinion of the House. The first amendment in this group is Amendment No. 50C. Will the Minister accept that—if by any chance the Opposition and our supporters should succeed in this Division—Amendments Nos. 54A and 57A are contingent upon Amendment No. 50C? Will he accept that the group of amendments goes together in the vote?
Lord Filkin: My Lords, I would be grateful if the noble Lord, Lord Kingsland, would allow me to reflect on that and give him an answer after we have seen the outcome of that Division.
Lord Kingsland: My Lords, the issues have been widely canvassed in the debate this evening. It would be most extraordinary if—were we to win this vote—the Minister then said that we had to go through all the other amendments in this group as well. Be that as it may, I would like to test the opinion of the House.
7 Jun 2004 : Column 51
5.49 p.m.
On Question, Whether the said amendment (No. 50C) shall be agreed to?
Their Lordships divided: Contents, 151; Not-Contents, 98.
Addington, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
Blaker, L.
Blatch, B.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Caithness, E.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chadlington, L.
Chester, Bp.
Clement-Jones, L.
Cobbold, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Crickhowell, L.
Darcy de Knayth, B.
Deedes, L.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Erroll, E.
Ferrers, E.
Flather, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Garel-Jones, L.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Hayhoe, L.
Home, E.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Inglewood, L.
James of Holland Park, B.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Laing of Dunphail, L.
Listowel, E.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monro of Langholm, L.
Montagu of Beaulieu, L.
Montrose, D.
Moynihan, L.
Murton of Lindisfarne, L.
Naseby, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Patten, L.
Peel, E.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Prior, L.
Quinton, L.
Rawlinson of Ewell, L.
Razzall, L.
Reay, L.
Redesdale, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L. [Teller]
Rotherwick, L.
Russell, E.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Stern, B.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Trenchard, V.
Tugendhat, L.
Ullswater, V.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walton of Detchant, L.
Watson of Richmond, L.
Weatherill, L.
Wilcox, B.
Williams of Crosby, B.
Windlesham, L
Ahmed, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Ashton of Upholland, B.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L. [Teller]
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Patel of Blackburn, L.
Pitkeathley, B.
Radice, L.
Richard, L.
Rooker, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Watson of Invergowrie, L.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Old Scone, B.
Resolved in the affirmative, and amendment agreed to accordingly.
7 Jun 2004 : Column 52
[Amendments Nos. 51 and 52 not moved.]
7 Jun 2004 : Column 53
6 p.m.
Lord Kingsland moved Amendment No. 52A:
"REVIEW AFTER EXHAUSTION OF RIGHTS OF APPEAL
Where a person's statutory rights of appeal have been exhausted with respect to an immigration decision, and where that person subsequently makes an application to the Secretary of State for his deportation to be stayed on the grounds that here has been a change of circumstances—
(a) if the Secretary of State decides that there has been no change in circumstances or accepts that there has been a change of circumstances but decides that they do not justify a stay of deportation, the applicant within 10 days of the decision may apply to a High Court judge or a judge of the Court of Session to review the decision;
(b) the review shall be conducted on the papers save in exceptional circumstances;
(c) the decision of the High Court judge or the judge of the Court of Session is final."
The noble Lord said: My Lords, the reason for introducing the amendment is to try to make the statutory review scheme in the Bill comprehensive in such a way that it excludes the possibility of judicial review. We can only succeed in doing that if the statutory review procedure, throughout all stages of the asylum decision, is considered sufficiently fair for the courts not to exercise their discretion to use the judicial review remedies that our courts have so proudly developed over the past 40 years.
I am trying to confront the following scenario: an asylum seeker has exhausted his statutory rights and is due to be deported. At some stage before his deportation, a new set of circumstances arises, say, in the country to which he is to be deported. There is a regime change. A benign regime is replaced by an autocratic and brutal one. In those circumstances, the asylum seeker, who is about to be deported, communicates with the Home Office. He says, "My decision ought to be reviewed on the grounds that the circumstances of my case have changed since the final tribunal decision was made. The country to which I am to be deported is a country that will, if I go there, treat me at a standard below the standards required by English law".
The Home Office considers such applications. In some cases, it has accepted that there is a change of circumstances and consequently has stayed deportation. But in other circumstances, it has either said that it does not accept that the circumstances have changed or that the circumstances have changed but not sufficiently to stay deportation. If it reaches one of those two latter decisions, the asylum seeker will often seek judicial review. As a consequence, the whole case, including all the issues that were raised during the statutory procedure, is rerun, to everyone's unnecessary expense and, in some cases, to the mental detriment of the asylum seeker.
The amendment seeks to prevent all that by ensuring that where the Home Office decides that there has been no change of circumstances or that there has been a change of circumstances but that it does not believe that they are sufficient, the matter will be reconsidered by a High Court judge. It is not necessary to go back to the
7 Jun 2004 : Column 54
tribunal again. The only issue at stake is not the personal circumstances of the asylum seeker, but the factual situation in the country to which he is about to be deported. That can be swiftly, effectively, successfully, credibly and comprehensively dealt with by a High Court judge. There is no reason why his decision ought not to be final.
In my judgment, if that amendment is incorporated in the Bill, it will succeed in achieving de facto what the Government sought, so clumsily, to achieve with their ouster clause; namely, to persuade judges who sit in the administrative courts considering judicial review matters on change of circumstances applications that judicial review is not necessary because an alternative and satisfactory statutory procedure is already in place. I beg to move.
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