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( ) The Lord Presidency may, as respects an application under subsection (4) for which the relevant appellate court is the Court of Session, by order make provision for leave not to be granted to the application under the Upper Tribunal or (as the case may be) the Court of Session considers-
The noble Lord said: I can deal with this point extremely tersely. This amendment was suggested by the Law Society of Scotland, which wondered why Clause 13(6) did not also contain a provision for the Lord Presidency and the Court of Session. That is the sole reason why this amendment has been tabled. I beg to move.
Baroness Ashton of Upholland: To clarify, the amendment would extend to the Court of Session the possibility of limiting second appeals in the same way as they could be limited in the remainder of the United Kingdom. As the noble Lord, Lord Kingsland, well knows, the measure is already established for appeals from the courts in England, Wales and Northern Ireland, but there is no equivalent provision in Scotland. We do not want to impose on the Court of Session a limitation in respect of tribunals which it does not have in respect of courts. However, there is a good argument that the criteria and approach should be the same throughout the United Kingdom. But before I accept the amendment, I hope that the noble Lord will give me a chance to consult the Lord President and the Scottish Executive, which I shall do as a matter of urgency, and come back to the noble Lord as soon as I can.
Lord Kingsland: We gave notice of our intention to oppose Clauses 15 to 20 standing part to raise three issues. I shall not necessarily mention them in order of importance. The first concerns Clause 17(2)(c). The clause is headed, Quashing orders under section 15(1). The provision in Clause 17 is identical in terms to that in Clause 132, which applies to judicial review generally. I do not propose to say anything further about this matter until we get to Clause 132 because the issue that is raised is identical. There is no point whatever in requiring the noble Baroness to say what she would have said, had I thought this an appropriate moment, on two separate occasions. I just signal that and leave it aside.
The second issue concerns the specific case of immigration, which is raised in Clause 19(1)(7). This point was raised at Second Reading by the noble and learned Lord, Lord Lloyd of Berwick. Once again, I do not want to anticipate what the noble and learned Lord will say about this in the debate that will ensue. I am going to leave it to him to develop the arguments that he drew to the Ministers attention at that earlier stage. I would say only that the Committee will recall some two years ago the dramatic events that surrounded the attempt by the Government to introduce an ouster clause over judicial review in relation to immigration matters, and the statutory consequences of that. The Committee will note that the Government have returned to this matter.
I shall say something about the third issue in a little more detail. It concerns the question of granting to the upper tribunal judicial review jurisdiction. As the Committee well knows, judicial review jurisdiction is traditionally a jurisdiction of the High Court. It derives from the great ancient prerogative writs and, although a series of civil rule reforms have refined the procedure, the principle remains the same. Judicial review was a matter originally for the Kings Bench; now for a court called the administrative court. As I understand it, the Government are seeking to set out in the Bill the circumstances in which the administrative court can grant to the upper tribunal powers equivalent to the old Kings Bench powers.
As I understand it, there are two sets of circumstances in which this might happen. The first set is that in which the noble and learned Lord the Lord Chancellor and the Lord Chief Justice can together designate certain categories of matter which can be granted by the High Court to the upper tribunal court to consider as judicial review matters. So if a matter within that category arises in the High Court, the High Court can simply designate it as a matter to be dealt with by the upper tribunal. Or there may be individual cases which the administrative court considers suitable to be dealt with by the upper tribunal. In those circumstances also, the upper tribunal can exercise powers equivalent to the administrative court.
I regard this as a rather dramatic innovation. As someone who espouses the Conservative cause in political life, I am extremely cautious of any change to something which has worked extremely well in this country over the centuries and I think it is up to the Government to justify it.
But there is one point of particular concern. On the assumption that this proposal by the Government goes ahead, it is extremely important that the judges who hear judicial review matters in the upper tribunal are of the same quality and experience as the judges one would expect to find in the administrative court. It may well be that in the Bill there is some provision that obliges that situation, but I have not identified it. In my submission, it would be most unfortunate if the administrative court were to delegate a judicial matter to the upper tribunal only to find it dealt with by judges who did not have those qualifications that I have just set out.
It will be helpful to go back briefly to the report of Sir Andrew Leggatt, upon which the Bill is based. The problem which he identified in relation to judicial review was a practical one: that if the upper tribunal is presided over by a High Court judgeand still more, of course, if it is presided over by a Lord Justice of Appealit does not make sense to have an appeal by way of judicial review from that High Court judge to another High Court judge.
Sir Andrew solved that problem by suggesting that judicial review should be excluded altogether in tribunal cases. Of course, that is not acceptable and, in fairness to Sir Andrew, he made that recommendation before the concern felt on the last occasion when there was an attempt to exclude or oust judicial review in immigration cases. The problem still remains, although it is a slightly different onethis is the point rightly referred to by the noble Lord, Lord Kingslandthat in order to substitute the upper tribunal as an alternative to judicial review by a High Court judge, it seems to me essential that the upper tribunal should be presided over in such a case by a High Court judge. The objection that would otherwise arise is that a decision on a matter that relates to judicial review is being taken by what I fear to say is called an inferior judge, a judge of the county court, not by a judge of the High Court.
That problem could be easily resolved by another exclusion in Clause 19in other words, another condition for the exclusion of judicial review should be that the decision from which the appeal is brought is one which has been presided over by a High Court judge. I do not think that there would be any difficulty in providing that exclusion.
At Second Reading I also raised a separate problem, which is the second issue raised by the noble Lord, Lord Kingsland. That relates to new Section 31A of the Supreme Court Act 1981 and, in particular, subsection (7)(b). I have not tabled a specific amendment to cover the question that I raised at Second Reading, but I hope that it is accepted that it is covered under the stand part debate.
The point I made has been the subject of a letter that I have received from the noble Baroness, for which I am very grateful, but I am not completely satisfied with the answer and therefore hope to take this opportunity to probe the matter a little further. The drafting of Clause 19 and new Section 31A of the Supreme Court Act is very complex. That was accepted by the noble Baroness in her letter. It is the structure rather than the language that is complex. The overall effect of the new section will be to exclude immigration cases from the new procedure, and to do so for a very obvious reason: that immigration cases are at the most sensitive end of judicial review cases. That is the reason why one finds in new subsection (7)(a)(i) a specific exclusion of immigration Acts.
That being so, surely it makes little sense to go on in new subsection (7)(b) to create an exception on that exclusion. Either the exclusion is justified on the basis that immigration cases are at the most sensitive end of judicial review, or not. If that presumption is established, it seems to me wrong that the Lord Chancellor by direction can override that presumption. That is why, unless I can be given some good reason why the overall objective should be set aside by a direction of the Lord Chancellor, I shall in due course seek leave to amend this clause so as to exclude paragraph (7)(b).
Baroness Butler-Sloss: I support my noble and learned friend Lord Lloyd of Berwick in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. It would be invidious for there not to be a judge of that rank dealing with it. I support my noble and learned friend very strongly.
Baroness Ashton of Upholland: I am grateful to the noble Lord, Lord Kingsland, for introducing a number of issues. I shall try to deal with them, but I hope that the noble Lord will leap in if I do not get it quite right.
I turn to the noble and learned Lord, Lord Lloyd of Berwick. If he does not mind, I shall reiterate a little of what I said in my letter to him to put it on the record as it is important. Noble Lords who know that I am not a lawyer will realise that this matter constitutes an additional double whammy for me. The clauses construction is necessarily complex, because, as the noble and learned Lord rightly said, there is great sensitivity about judicial review, particularly as regards immigration. I reiterate what my noble and learned friend Lord Falconer of Thoroton said to the noble and learned Lord, Lord Lloyd of Berwick, at Second Reading. My noble and learned friend said that,
I reiterate that for the benefit not only of Members of the Committee who may not have been present at Second Reading but to make it clear to those who read Hansard that we are not attempting to do that.
We have sought to establish conditions that must be met before a case can be transferred. These are: limitations on the relief sought, which is the first condition; and that nothing done by the Crown Court is questionedthe second condition. The third is that the case falls into a class specified by the Lord Chief Justice and the Lord Chancellor. That duet is particularly important in that case. If the case is in that class and the other conditions are met, the case must be transferred. As the noble and learned Lord rightly says, we have prevented the transfer of any asylum, immigration or nationality cases, but we have allowed ourselves flexibility in the legislation. There is no question that that is what we wish to do at present, but I am trying to ensure that we think always of the future.
The noble and learned Lord well knows the sensitivities surrounding asylum and immigration cases. He rightly recognises that we have sought to identify that in this clause. He also recognises the importance of not transferring them at this point. But we want to ensure that flexibility exists to review that decision in the future, not least because we want to see how the provision works in different areas. We want to see what kind of cases might be captured. The noble and learned Lord knows that we shall look at very specialist areas where it is extraordinarily relevant to use the expertise in the upper tribunal. It is, of course, the High Courts decision to do that. If a measure is about reasonableness it can hang on to it, if it thinks that it is relevant. It is the High Courts choice. That refers to the issue of the judiciary. As the noble and learned Lord and the noble Baroness know, High Court judges can indeed sit in the upper tribunal. However, there may be cases where they do not. It is within the High Courts decision-making powers to determine whether to send a matter to the upper tribunal if it thinks that is appropriate in terms of the kind of decision that is involved, the specialism that is required for that decision and the appropriate person being in charge to deal with it.
We have not said in the Bill that the person has to be a High Court judge, specifically because we sought recognition of the high level of expertise that might be relevant in very particular cases, and to leave that to the High Court to determine whether it felt it appropriate for there to be a transfer. That is where we are with the Bill; I hear what Members of the Committee say and I am sure that we will continue to discuss it, but that is why the flexibility exists in that part of the Bill. I hope that gives a flavour of what we seek to do.
Lord Lloyd of Berwick: If the Minister wants flexibility to include immigration cases, why not put that in the Bill now? It is in a sense doing by a back door what you are not doing by the front door. Why can we not have the presumption made permanent, subject obviously to further primary legislation?
Baroness Ashton of Upholland: I understand the noble and learned Lords position. We are clear that we do not want to include them at present, for the reasons I have indicated, which he is obviously at complete liberty to not accept. It seems to me that we have no case to include them now, for the reasons that are obvious about the nature of the cases concerned and the desire to continue with cases, because that would definitely be what those applying for cases would wish. We know that; they are very different at present.
We are dealing with a very particular time in terms of asylum and immigration cases, and with very particular issues. We do not yet have the expertise of having done what we propose to do in the legislation. All that I was suggesting to the noble and learned Lord was that we wanted to make sure that we did not rule this out for ever. If there came a point when we ought to look at it, in the view of the Lord Chief Justice and the Lord Chancellor, we should be able to. Cases and circumstances change. Certainly, within asylum and immigration cases, we see that circumstances have changed radically over several years. The noble and learned Lord is at liberty to say that we should wait for the next passing piece of legislation; my experience is that you can wait a long time, and one should have the opportunity to think about how well the system is working and the nature of future cases. That is the reason. We were not seeking to do anything for which he would rightly accuse us of back door-ism, and for the present we have no intention of including such cases. None the less, we want to be sure that in future there will be the opportunity for us all to consider the matter again.
Lord Kingsland: I am most grateful to the noble Baroness for her reply. I share much of the noble and learned Lords concern about new Section 31A(7)(b). One anomaly about immigration in the Bill is that immigration tribunals are one category of tribunals that are to some extent outside the system described in it, not for all purposes but for some. Traditionally at the moment, all judicial review matters about asylum and immigration will continue to go to the administrative courtfull stop. By virtue of new Section 31(7)(b), the Government have given themselves an opportunity in future to change that. Therefore, we will have a curious situation whereby a set of tribunals that are not integrated into the full system of the Bill, soon to become an Act, nevertheless have their appeals heard in the upper tribunal, which is an integrated part of the Act. Quite apart from the underlying merits of that, I foresee a certain amount of statutory confusion unless the Government think further about the method that they use. I know that the noble Baroness will think about that before Report.
One other matter to which I wish to return is the question of the kind of judge who ought to hear judicial review matters referred to the upper tribunal. I feel strongly that it ought to be a High Court judge. I am not sure I fully understood the Ministers response to the noble and learned Lord, Lord Lloyd of Berwick, but I think she said that the Government wanted to retain the flexibility for the upper tribunal to hear judicial cases by judges other than High Court judges. I wish to put it on record that, for my part, the
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Baroness Ashton of Upholland: I thank the noble Lord for letting me intervene. I wish to say two things. First, we want the Asylum and Immigration Tribunal to be part of the system. It is a single operation, which is why it sits a little awkwardly within the legislation.
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