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Lord Goodhart rose to move Amendment No. 28AA, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28, leave out "agree" and insert "disagree".

The noble Lord said: My Lords, in moving Amendment No. 28AA, I wish to speak also to Amendments Nos. 28BA and 62B. These are intended to maintain the extension of time for making an application for reconsideration under the new Section 103A of the Nationality, Immigration and Asylum Act 2002 from five to 10 working days—that is, two weeks after receipt of the notice of decision.

Five days is, frankly, a ridiculously short period of time. The applicant's lawyer will have to read the decision carefully; he or she will have to consider the legal issues involved in the decision; he or she may well have to consult the client, which is likely to involve arranging a meeting at which an interpreter must be present; he or she may have to consult counsel; and he or she will have to draft the application, a document requiring great care as it is the sole basis on which a judge of the appropriate court will decide the application. There is no chance to supplement that document at an oral hearing as there will be no oral hearing. It will also be necessary to get the application to the appropriate court before it closes for business on the last available day.

If the lawyer in question had little else to do, a five-day period might well be enough. But a competent immigration lawyer—and it is the objective of the Government, as it is of everyone else, to ensure that these cases are handled by competent lawyers—will be handling other cases, perhaps many others, at the same
 
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time. He or she will not know in advance when the decision will be released by the tribunal. If it arrives when the lawyer is appearing in court, the lawyer cannot possibly drop everything else. The lawyer may have to hand over the case to a colleague in the same firm or organisation who is not familiar with it; or it may be impossible for the lawyer to find someone else and the applicant may have to find a new lawyer.

The noble Lord, Lord Filkin, said on Report when our amendment was accepted:

I might rephrase that as, "It means you can draft your application in advance". That, frankly, is absurd. One ground for the application—and it is only one of many possible grounds—might be that the tribunal member in question failed to take into account evidence he should have taken into account. That comes within the description of an error of law. But how can you possibly know in advance that the member of the tribunal will have failed to take into account a particular piece of evidence? To make that application, you then have to say what the evidence was, show that it was not taken into account and why it might have made a difference it if had been. All those things will take a substantial amount of time.

The Joint Committee on Human Rights said in its 13th report of the current Session in paragraph 1.77:

In the debate on 7 June, our amendment was supported by speakers from all Benches, including the noble Lords, Lord Clinton-Davis and Lord Plant of Highfield, from the Government Benches, and it was opposed by no one other than the Minister.

In the debate in the House of Commons on Monday of this week, the Government's amendment to restore the five-day time limit was described by Robert Marshall-Andrews as,

I could not have put it better myself.

I am afraid that I simply cannot understand why the Government, totally without justification and with hardly any benefit to increasing the speed of the proceedings, continue to insist on this five-day limit. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28, leave out "agree" and insert "disagree".—(Lord Goodhart.)

The Countess of Mar: My Lords, I support the noble Lord, Lord Goodhart, in his amendment. It seems to me nonsense to turn down a proposal to extend the time very briefly, when what is likely to result is a lot of out-of-time cases before the courts. How much time will that take and how much will it cost the taxpayer?
 
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Lord Kingsland: My Lords, the noble Lord, Lord Filkin, was right in saying that there has been a considerable amount of beneficial flexibility as the Bill has moved through your Lordships' House and another place. The issue of time has been, in my submission, the one exception to that.

I agree with the noble Lord, Lord Filkin, that the time limits should be demanding. In Committee, we ourselves tabled an amendment suggesting a limit of seven days; but it is our view that setting a limit of five days goes too far.

There are many circumstances in immigration appeals in which it is necessary to switch from a legal adviser who has a general practice in immigration law to an adviser who deals with very special issues. It would be extremely difficult to make such a switch within as tight a timetable as five days.

Moreover, as the noble Lord, Lord Goodhart, said, although appeals can only be on the basis of an error of law, there are many occasions when, to make out an appeal on an error of law, a legal adviser has to study in considerable detail the factual structure of the case to determine whether a perverse decision was reached with respect to the evidence.

We must not forget, either, that, on occasions, the consequences of a wrong decision for an applicant are very serious if he is returned to a country that is determined to incarcerate him for a long period or to put him to death. We must remember that those applicants often do not speak any English.

In all those circumstances, it is our view that the limit of five days ought to be considered again by the Government and extended. We on these Benches will support the noble Lord, Lord Goodhart, in his amendment.

Lord Donaldson of Lymington: My Lords, in the early 1970s, it was my privilege to be the president of the National Industrial Relations Court. I claimed, rightly, that it was the fastest court in the West, which produced the reasonable comment from Michael Foot that I was "trigger happy". I mention that merely to show that I am not one who supports sluggardliness in court proceedings. It is terribly important to keep things moving. But—and this is an important but—it is no good fixing one's timetable at a point when there then must be numerous applications for extensions of time. That itself involves a waste of time.

The noble Lord, Lord Goodhart, rightly pointed out that people who are any good at any specialty in the law tend to be very fully employed. That is why they become experts and why they are so employed. That being so, I could not help thinking that the Minister believed that lawyers were concerned only with one case at a time. It would appear that he believes that they can pick up a case on a Monday and study it, not in a desultory manner but giving 11 hours to it, which is nearly two days, then have nothing else to do for the rest of the week. It is not like that. It may be that someone with a true specialty has only one case at a time and that case lasts for a couple of months—but that is very different. It is not the area that we are discussing.
 
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The Minister then talks about lawyers trawling through the law and seeking obscure technicalities. People do not do that, or certainly not in a field with which they are familiar. They know what the points are; without reference to any particular case, they know what they are looking for, and they look for it. They certainly will not try to find fancy points—unless, of course, they are satisfied that there is some real injustice occurring that is way outside the ordinary experience. Then they will look to see whether there is any way in which they can safeguard the true and real interests—not bogus interests—of their clients. I do not find that reprehensible at all, although there seems to be an assumption that it is.

I cannot understand what real difference there is between 10 days and five days. Looking at the whole period in which the proceedings are governed, I do not know quite what they are, but I am sure that an extra five days represents a very small increase in the time available. I am also tempted to wonder whether anyone has found out whether the judges can cope with that period. It is one of the features of judicial life and managing courts that there is a degree of ebb and flow. If one has no time to balance things out, one becomes either a bit slap-happy or inefficient.

I strongly support the amendment tabled by the noble Lord, Lord Goodhart, from a practitioner's point of view—meaning the point of view of a judicial practitioner.


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