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Lord Judd: My Lords, does my noble friend agree that paragraph 584 of this excellent report deserves careful consideration? It states that,

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 view—indeed, in the light of the paragraph from the Butler report that I cited about the validation of intelligence, it is clear—that 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 action—indeed, even some of those who had been in favour of action—wanted 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.

Asylum and Immigration (Treatment of Claimants, etc.) Bill

Lord Filkin: My Lords, I beg to move that the Commons amendments be now considered.

Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line references are to HL Bill 36, the Bill as first printed for the Lords.]
LORDS AMENDMENT


28 Clause 14, page 13, line 22, leave out subsections (6) and (7) and insert—
"(6) Before section 104 of that Act (pending appeal) insert—
"103A Review of Tribunal's decision
(1) A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.
(2) The appropriate court may make an order under subsection (1)—
(a) only if it thinks that the Tribunal may have made an error of law, and
(b) only once in relation to an appeal.
(3) An application under subsection (1) must be made—
(a) in the case of an application by the appellant made while he is in the United Kingdom, within the period of 10 working days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, and
(b) in the case of an application by the appellant made while he is outside the United Kingdom, within the period of 28 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, and
 
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(c) in the case of an application brought by a party to the appeal other than the appellant, within the period of 10 working days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision.
(4) But—
(a) rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and
(b) the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period.
(5) An application under subsection (1) shall be determined by reference only to written submissions of the applicant.
(6) A decision of the appropriate court on an application under subsection (1) shall be final.
(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to—
(a) a procedural, ancillary or preliminary decision, or
(b) a decision following remittal under section 103B, 103C or 103E.
(8) This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more members.
(9) In this section "the appropriate court" means—
(a) in relation to an appeal decided in England or Wales, the High Court,
(b) in relation to an appeal decided in Scotland, the Court of Session, and
(c) in relation to an appeal decided in Northern Ireland, the High Court in Northern Ireland.
(10) An application under subsection (1) to the Court of Session shall be to the Outer House.
103B Appeal from Tribunal following reconsideration
(1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.
(2) In subsection (1) the reference to reconsideration is to reconsideration pursuant to—
(a) an order under section 103A(1), or
(b) remittal to the Tribunal under this section or under section 103C or 103E.
(3) An appeal under subsection (1) may be brought only with the permission of—
(a) the Tribunal, or
(b) if the Tribunal refuses permission, the appropriate appellate court.
(4) On an appeal under subsection (1) the appropriate appellate court may—
(a) affirm the Tribunal's decision;
(b) make any decision which the Tribunal could have made;
(c) remit the case to the Tribunal;
(d) affirm a direction under section 87;
(e) vary a direction under section 87;
(f) give a direction which the Tribunal could have given under section 87.
 
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(5) In this section "the appropriate appellate court" means—
(a) in relation to an appeal decided in England or Wales, the Court of Appeal,
(b) in relation to an appeal decided in Scotland, the Court of Session, and
(c) in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.
(6) An appeal under subsection (1) to the Court of Session shall be to the Inner House.
103C Appeal from Tribunal instead of reconsideration
(1) On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court.
(2) On a reference under subsection (1) the appropriate appellate court may—
(a) affirm the Tribunal's decision;
(b) make any decision which the Tribunal could have made;
(c) remit the case to the Tribunal;
(d) affirm a direction under section 87;
(e) vary a direction under section 87;
(f) give a direction which the Tribunal could have given under section 87;
(g) restore the application under section 103A to the appropriate court.
(3) In this section—
"the appropriate court" has the same meaning as in section 103A, and
"the appropriate appellate court" has the same meaning as in section 103B.
(4) A reference under subsection (1) to the Court of Session shall be to the Inner House.
"103D Reconsideration: legal aid
(1) Subsection (2) applies where the appropriate court has made an order under section 103A(1), or a reference under section 103C(1), on the application of an appellant under section 103A.
(2) The appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22).
(3) Subsection (4) applies where the Tribunal has decided an appeal following reconsideration pursuant to an order made—
(a) under section 103A(1), and
(b) on the application of the appellant.
(4) The Tribunal may order that the appellant's costs—
(a) in respect of the application for reconsideration, and
(b) in respect of the reconsideration,
shall be paid out of that Fund.
(5) The Secretary of State may make regulations about the exercise of the powers in subsections (2) and (4).
 
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(6) Regulations under subsection (3) may, in particular, make provision—
(a) specifying or providing for the determination of the amount of payments (which may, in particular, vary according to the result of the reconsideration or of the reference under section 103C);
(b) about the persons to whom the payments are to be made;
(c) restricting the exercise of the power (whether by reference to the outcome of the appeal, the circumstances of the appellant, the nature of the appellant's legal representatives, or otherwise).
(7) Regulations under subsection (3) may make provision—
(a) conferring a function on the Legal Services Commission;
(b) modifying a duty or power of the Legal Services Commission in respect of compliance with orders under subsection (2);
(c) applying (with or without modifications), modifying or disapplying a provision of, or of anything done under, an enactment relating to the funding of legal services.
(8) Before making regulations under subsection (3) the Secretary of State shall consult such persons as he thinks appropriate.
(9) This section has effect only in relation to an appeal decided in—
(a) England,
(b) Wales, or
(c) Northern Ireland.
(10) In relation to an appeal decided in Northern Ireland this section shall have effect—
(a) as if a reference to the Community Legal Service Fund were to the fund established under paragraph 4(2)(a) of Schedule 3 to the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)), and
(b) with any other necessary modifications.
103E Appeal from Tribunal sitting as panel
(1) This section applies to a decision of the Tribunal on an appeal under section 82 or 83 where its jurisdiction is exercised by three or more legally qualified members.
(2) A party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.
(3) An appeal under subsection (2) may be brought only with the permission of—
(a) the Tribunal, or
(b) if the Tribunal refuses permission, the appropriate appellate court.
(4) On an appeal under subsection (2) the appropriate appellate court may—
(a) affirm the Tribunal's decision;
(b) make any decision which the Tribunal could have made;
(c) remit the case to the Tribunal;
(d) affirm a direction under section 87;
(e) vary a direction under section 87;
(f) give a direction which the Tribunal could have given under section 87.
(5) In this section "the appropriate appellate court" means—
(a) in relation to an appeal decided in England or Wales, the Court of Appeal,
 
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(b) in relation to an appeal decided in Scotland, the Court of Session, and
(c) in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.
(6) A further appeal under subsection (2) to the Court of Session shall be to the Inner House.
(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to—
(a) a procedural, ancillary or preliminary decision, or
(b) a decision following remittal under section 103B or 103C."
The Commons agree to this amendment with the following amendments—
28A Line 14, leave out "10 working" and insert "5"
28B Line 24, leave out "10 working" and insert "5"
28C Line 36, after "to", insert—
"(a)"
28D Line 36, at end insert—
", and
(b) where rules of court permit, other written submissions."
28E Line 45, after "more", insert "legally qualified"
28F Line 131, leave out from "payments" to end of line 133
28G Line 136, leave out "the outcome of the appeal," and insert "the prospects of success in respect of the appeal at the time when the application for reconsideration was made, the fact that a reference has been made under section 103C(1),"

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.

When I refer to the High Court, I am also referring to the High Court of Northern Ireland and the Court of Session in Scotland.

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 process—because there may be a large volume of such applications to the tribunal—whereby, 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 place—in 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 days—weekends 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 been—how 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 circumstances—for 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 obduracy—I hope that noble Lords will agree that we have exhibited neither characteristic in this House on the Bill—we 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.

Moved, That the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28.—(Lord Filkin.)


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