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"much of what was reliably known about Iraq's unconventional weapons programmes in the mid- and late-1990s was obtained through the reports of the UN Special Commission (UNSCOM) and of the International Atomic Energy Agency".
That paragraph goes on to say that the work of those agencies has perhaps been underestimated in the past and that due weight should be given to it in future. More support should be given to them with the support of our intelligence agencies. Does not my noble friend agree that that paragraph gives ground for considerable reflection on just how seriously we took the work of Hans Blix and the UN inspectors at the time or how far, rather, we chose to push it to one side because of our own priorities in government?
Baroness Amos: My Lords, I agree with one part of my noble friend's comment, but not with the other. I entirely agree with him about the importance of the UN mechanisms. The Government have always upheld them. However, I must tell my noble friend, with respect to the judgment made about containment, that it was at the time and remains our firm viewindeed, in the light of the paragraph from the Butler report that I cited about the validation of intelligence, it is clearthat containment was not working. Concern was being expressed not just by our Government or by that of the United States but by others around the world about what Saddam Hussein intended to do. In that respect, I do not agree with my noble friend.
Lord King of Bridgwater: My Lords, does not the noble Baroness recognise that her plea for the matter now to be closed will simply not be recognised by the general public, especially because of the limited, restricted terms of reference, to which the noble Lord, Lord Butler, properly stuck? I did not hear a clear answer to my noble friend's question from the Front Bench about whether the Attorney-General would come to make a statement on the matter. The noble Lord, Lord Butler, made clear that he had not pursued that matter; the committee did not consider the question of the legality of the war. Likewise, the role of government was likewise more circumscribed in the terms of reference.
Even given his limited terms of reference, the noble Lord, Lord Butler, found that there were serious failings for which there was collective responsibility. Who takes collective responsibility in this Government?
Baroness Amos: My Lords, first, I think that the noble Lord, Lord King, cannot have heard what I said. I in no way said that the issue is closed. I said that those who had not been in favour of actionindeed, even some of those who had been in favour of actionwanted any number of inquiries to address the particular points that they considered relevant, which
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they did not consider had been answered in the reports. The reports have collectively made it absolutely clear that in no sense did the Government act in bad faith. So those who are looking for some kind of ammunition will not find it. I did not say that the case is closed. I said that there have been four reports on the issue and that at some point we have to agree, when considering what has been said collectively through the reports, that the questions raised have been addressed.
I think that we have addressed the specific point about my noble and learned friend the Attorney-General. My noble and learned friend made a written Statement. My right honourable friend the Secretary of State for Foreign and Commonwealth Affairs elaborated on that Statement in another place, and that was repeated in this House. There will not be a further Statement from my noble and learned friend.
Lord Filkin: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28. I shall speak also to Lords Amendment No. 62 and Commons Amendment No. 62A thereto, which cover substantially the same ground, as well as Amendments Nos. 28AA, 28BA and 62B in the name of the noble Lord, Lord Goodhart.
We are at that stage of our parliamentary process where we are hopefully approaching the end of consideration of the Bill. Let no one allege that the Government have not listened and reflected on what the House has said. My noble and learned friend the Lord Chancellor gave serious reflection to the arguments made in the House about the judicial review ouster and came back with an alternative which, in broad measure, the House has welcomed. Secondly, we previously considered the issue of legal aid success fees. I gave the noble Lord, Lord Kingsland, my undertaking that, within the terms in which he had put the issue to me, I would take the issue away and seek to address it in another place. I hope that he will find that we have done so.
The noble Lord will also know from Commons consideration that we also considered the issue of lay members, which we did not rejoice about, but we also listened to the House in that respect. So the House has been listened to, but we have not been persuaded by the House about this measure.
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New Section 103A in Amendment No. 28 allows a party to the appeal before the Asylum and Immigration Tribunal to seek a review of the tribunal's decision in the High Court, on the grounds that the tribunal may have made an error of law. The High Court may order the tribunal to reconsider the case. As those who have been following the Bill closely will know, there is also an interim process, a filter processbecause there may be a large volume of such applications to the tribunalwhereby, if the transitional process in Amendment No. 62 is in place, the review will first be considered by a senior judge in the tribunal. He may also make an order for reconsideration of the case. If he chooses not to, the applicant may opt in for the case to be considered by the High Court anyway.
Amendments Nos. 28A, 28B and 62A restore the Government's intention that five-day time limits should apply to that process, both for the initial application, and the opting in, if the transitional filter process is in placein the circumstances I just described.
The Bill originally contained an ouster of the jurisdiction of the higher courts. Having listened to opinions, we brought forward the new policy in Amendment No. 28. Under the new policy, the decisions of the single-tier tribunal are now subject to review in the High Court. We agree that it is important that the High Court has such oversight, but we cannot allow that to compromise our legitimate aims of speed and efficiency. Therefore, it is vital that limits are placed on the review to prevent applicants without meritorious cases using the process to cause delay and expense. One of those limits is the new system of legal aid for reviews, to which we shall return later, and another is the limit on the time in which an application can be made.
The Government are confident that five days is more than enough for an applicant to consult their legal representative, for the representative to prepare the application and for the application to be lodged. Similarly, five days is also entirely sufficient for the simple procedure of opting to have a review application considered by the High Court under the transitional provisions.
For the avoidance of doubt, five days means five working daysweekends and bank holidays are excluded. That does not need to be spelt out in the Bill, although new Section 103A(4)(a) points to the fact that that effect is already achieved by rules. I should also point out that after the decision is promulgated by the tribunal, two days are allowed for the determination to reach the representative through the post before the five days starts. Therefore, we are talking about five full days for the representative to work on the application.
The time limits in Amendments Nos. 28A and 28B apply when a party to the appeal wants to challenge the decision of the asylum and immigration tribunal. The applicant will therefore have already presented his case to the Immigration and Nationality Directorate and before an independent tribunal before reaching that stage. The grounds of appeal will already have been covered at the appeal and in the tribunal's statement of
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reasons. Furthermore, that review is not a rehearing, but is focused solely on errors of law made by the tribunal. Given that the legal representative will, in most cases, already be familiar with the case, the preparation for it should not prove onerous.
In order to test the assertion, and to test the realism of what we are putting before the House, we have asked the Legal Services Commission to look at the current statutory review process under Section 101 of the Nationality, Immigration and Asylum Act 2002. Based on this, we have looked at what, in practice, have been the submissions made by lawyers as part of the statutory review process. I have inspected some of those cases and solicitors have not always beenhow shall I put it?very fulsome in terms of the cases they have put forward. We would expect them to do around six hours' work on a review application, including reading through the papers, interviewing the client, taking instructions and, if necessary, briefing counsel. Counsel is not always briefed in such cases; if counsel is involved, he could be expected to take between two and five hours to draft the application. We are therefore talking about six hours for the solicitor and up to five hours for counsel. That is very achievable in five working days.
Of course, there will always be exceptions. We have made it clear from the outset that we would not want to see this lead to injustice. Therefore, Section 103A(4)(b) explicitly allows the High Court to accept out-of-time applications,
This will deal with all the exceptional circumstancesfor example, if the usual legal representative of the applicant was unwell and unable to complete the application in time, or if specialist evidence needed to be collated to present a full review application. This will work by the applicant applying out of time and the High Court exercising its discretion to allow the out-of-time application.
Put at its simplest, we are confident that five days is adequate in the majority of cases. The legislation explicitly allows the High Court judge, who will clearly be charged with upholding the interests of justice, to grant further time when the case is put to him and he considers that that case could not reasonably practicably have been made within that period. The legislation could not be clearer or, we believe, fairer.
It would be even more absurd to allow more than five days for "opting in" under the transitional filter process. I do not want to bore the House with the detail, but this is essentially when a case has been considered by a senior judge in the AIT on a review application and has been found not to be valid. At that point, the applicant still has the further right to lodge a case to the High Court, but this will require little more than a fax or a letter to be sent to the High Court, indicating that the applicant wishes his case to be considered again, following consideration by a judge in the tribunal. That could be done in half an hour, so five days is somewhat generous.
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Why does all this matter? As I have set out on previous discussions on the Bill, it is important that we have a process that is no slower than necessary in the interests of justice. It is important that we send a message that this review process is for obvious errors of law, and not to allow legal representatives to trawl through obscure legal arguments and technicalities. And we will send that message clearly if we make sure that the opportunities for causing delay are minimised.
For these reasons, and not out of any stubbornness or obduracyI hope that noble Lords will agree that we have exhibited neither characteristic in this House on the Billwe do not think that there is any justifiable reason for resisting the views of the other place twice that five days is perfectly sufficient for either of these circumstances and, moreover, that that five-day period is protected by the direct discretion given to a High Court judge to grant more time when he thinks it was not reasonably practicable to put in an appeal in that case. What more, fairly, should be done? I ask the House not to resist the Commons amendment in this respect.
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