Asylum and Immigration (Treatment of Claimants, etc.) Bill (Hansard, 20 July 2004)

§ Mr. Deputy Speaker (Sir Michael Lord)
I inform the House that privilege is involved in Lords amendment No. 28H. If the House agrees to the amendment, I will arrange for the necessary entry to be made in the Journal.

§ The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy)
I beg to move, That this House agrees with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this we may consider Lords amendment No. 28H.

§ Mr. Lammy
Last week, the other place agreed to the amendments proposed by this House, but proposed that two further consequential amendments be made. Amendment No. 28DA is consequential on amendments Nos. 28C and 28D, already agreed by this House. These amendments introduce an additional flexibility to the procedure for the review process in the High Court. That will be after a case has been considered by the new asylum and immigration tribunal—[Interruption.]

§ Mr. Deputy Speaker
Order. Could hon. Members leaving the Chamber do so quickly and quietly, so that we can make progress with the next business?

§ Mr. Lammy
That process will be after a case has been considered by the new asylum and immigration tribunal and a party to the appeal has claimed that the tribunal has made an error of law.
In the majority of cases, the judge in the High Court will simply look at the applicant's papers to decide whether or not there may have been an error of law. However, in some circumstances, it may be appropriate for other submissions to be considered. For example, it might be helpful for the respondent to file submissions in fast-track cases. Where speed is key, allowing respondents' submissions would enable the reconsideration to take place more quickly.
Amendments Nos. 28C and 28D allowed rules of court to make provision for that flexibility. Amendment No. 28DA introduces a similar flexibility while the filter is in place. For a transitional period, the tribunal will first consider the review application. The amendment means that the rules of procedure for the AIT can similarly allow the tribunal to consider additional papers.

§ Mr. Dominic Grieve (Beaconsfield) (Con)
How long is it intended that the transitional period will last?

§ Mr. Lammy
The hon. Gentleman will know that the transitional period has very much been devised in consultation with the judges themselves, who are 289 conscious that asylum levels remain, as we move to a new system, at a level that they can handle. I cannot tell the hon. Gentleman exactly how long the transitional period will be in place, but it is right to give the tribunal the opportunity to consider the application before it goes up, as it were, to the High Court.

§ Mr. Neil Gerrard (Walthamstow) (Lab)
On the transitional period, one matter on which people will want to be clear is which cases will be caught by it and whether it will then fall into the new system. Will the Minister confirm exactly how that will work?

§ Mr. Lammy
All cases that are appealed from the initial determination by the tribunal will be caught within the transitional net and within the proximity of the tribunal's being able to make the initial determination as to whether it needs to be reconsidered or the High Court should look into it again. All cases that are appealed beyond that tribunal determination—or at least all cases in which the parties chose to make the application—would be caught by it. It would be surprising if they did not want the tribunal to look further into the case before it goes to the High Court.
I will now turn briefly to amendment No. 28H. Members will recall that when we considered the Bill last week, the Government brought forward amendments to provisions for new legal aid arrangements for the review and reconsideration process. Those amendments responded to concerns expressed in the other place that the focus of the scheme should be on merit and not just on success. That has always been the Government's intention and we recognised that the Bill was perhaps not clear on that point.
Amendments Nos. 28F and 28G met many of the concerns raised, but clearly not all, which is why, following discussions, we tabled amendment No. 28H in the other place. The amendment is designed to enable the High Court to award legal aid for the review application even if no reconsideration order or Court of Appeal referral has been made. Examples of when the power might be used include when a reference to the Court of Appeal is made or when a review application is made with good prospects of success, but is then rendered unsuccessful because a lead case on the subject was decided after the application had been lodged. It is clear that that might arise in exceptional cases. In the vast majority of cases, however, the tribunal will be best placed to take the decision on funding at the reconsideration.
On that basis, I ask hon. Members to agree to amendments Nos. 28DA and 28H.

§ Mr. Dominic Grieve (Beaconsfield) (Con)
I agree that Lords amendment No. 28DA is a tidying-up amendment, and I accept that the filter procedure is necessary while the courts continue to be burdened. The Minister is therefore to be commended for making sure that the rules governing the filter system and the review by the tribunal follow the approach taken by the High Court. The amendment is therefore quite unexceptionable and we are happy to support it.
290 Lords amendment No. 28H concerns legal aid. When this matter was before the House on Monday last week, it was clear that Lord Filkin had assured my noble Friend Lord Kingsland that conditional fee agreements would not be imposed in respect of asylum claims. The Minister was kind enough then to give a number of assurances that the Bill would be amended, but it was clear that there had been a lacuna in respect of review, as opposed to reconsideration. The amendment remedies that and I am grateful to the Minister for dealing with that matter. I am happy to accept this amendment as well.
That disposes of this extremely complex Bill. In conclusion, I shall only say that I am delighted that the official Opposition have been able to set the pace and to rewrite and restructure the Bill as it has passed through both Houses. It bodes well when one sees a Government following the Opposition and dancing to their tune.

§ Mr. Alistair Carmichael (Orkney and Shetland) (LD)
Today appears to be a day for the Conservatives to start rewriting very recent history. I suspect that the hon. Member for Beaconsfield (Mr. Grieve) has just given us the most recent example of that. However, today also seems to be a day for the Liberal Democrats to outdo the Conservatives. I suspect that I can outdo the hon. Gentleman in terms of brevity as well.
We still have some concerns about the procedures contained in the Lords amendments. We are especially worried about the lack of flexibility associated with written determinations at this stage in the appeal procedures. Time will tell whether that can be made to work.
I have one final question for the Minister, in connection with the legal aid provisions. The Bill, quite properly, is silent about legal aid in Scotland, which is a matter for the Scottish Executive. However, there is no doubt that the provision of legal aid is an important part of the deal that has been struck. Will the Minister say whether any discussions have been held with the Scottish Executive about the provision of legal aid for cases before the Court of Session? What response has been received from the Scottish Executive?

§ Mr. Lammy
Discussions have been held and they are ongoing.