HL Deb 28 July 1981 vol 423 cc677-86

3.45 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Belstead.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 43 [Decisions involving exercise of discretion]:

Viscount Colville of Culross moved Amendment No. 141ZAC:

Page 38, line 8, leave out subsection (2) and insert ("(2) Subject to subsection (3) and to Rules of Court, any person who has made an application to the Secretary of State, a Governor or Lieutenant-Governor under this Act shall be entitled to appeal to the Court against a decision refusing his application for a review of the decision and for an order declaring his rights under this Act. (3) Without prejudice to section (Appeal against refusal of registration or naturalization) subsection (2) shall not apply to a decision made under sections 3(1), (5), 4(4), (5), 5, 6(3) to (6), 7(2), (3), 11(4) and that subsection as applied by sections 23, 28 and 33, 12(3) and that subsection as applied by sections 23, 16(1), (5), 17, 19(2), (3), 26(1), 27(2), (3), 31, 38 and 39, and in the case of any such decision there shall be no requirement to assign any reason for the refusal of the application and the decision shall not be subject to appeal or review in any court.").

The noble Viscount said: The Committee will agree with me that this is not an afternoon for long speeches. We have been put in a high good humour by my noble and learned friend, and we have been advised by him not to quarrel. I shall attempt to abide by all those precepts. Nevertheless, Members of the Committee who have been following this Bill will appreciate that when one comes to the provisions relating to appeals there has been a good deal of concern. It is, of course, an important matter because of the increased number of decisions that will have to be taken by, primarily, the Home Office under the new arrangements that are coming into force.

The purpose of this amendment is to deal with the decisions made by the Home Secretary which are decisions of entitlement. In Clause 43(2) it is put in the negative that a decision which is at the discretion of the Secretary of State, a Governor, or a Lieutenant-Governor shall not be subject to appeal to, or review in, any court.

I am concerned about this because it leaves a complete silence about what are to be the rights of appeal that will be available to those who seek to obtain, for instance, registration as a matter of entitlement. First of all, two simple questions to my noble and learned friend Lord Mackay: Have I listed in the second subsection of my amendment all the discretionary decisions except the one that I know I have left out which is paragraph 6 of Schedule 2? Secondly, I put in the list Clause 38. That, together with Schedule 4 is something of an oddity in the Bill because it provides for the insertion into the Immigration Act of 1971 of certain amendments, some of which will be the subject of decisions in due course.

Under the Immigration Act 1971, inherited from legislation two years before that, there is a system of appeals to an adjudicator and the immigration appeals tribunal, and also the ability to go straight to the High Court on some immigration matters. I want to make perfectly certain that merely by putting amendments to the 1971 Act into this Bill in Clause 38 and Schedule 4, and then saying in Clause 43(2) that there shall be no appeal on matters of discretion, there is absolutely no question whatever of there being any alteration of the rights of appeal under the Immigration Act. The provisions of Clause 43 will not, therefore, rub off on to the new insertions into the Immigration Act. I am sure that they will not; but one needs to be absolutely certain that the drafting is such that there is no question of anybody even being able to argue it. I ask my noble and learned friend for an assurance on that. Incidentally, I gave notice of the point before; I am sorry if it was not communicated to my noble and learned friend.

The main point of the amendment is that, as I understand the intentions of the Government, a person who is dissatisfied with the Home Secretary's decision on a matter which under the Bill is one of entitlement shall be able to go to the courts by way of appeal. Since it is not a matter of discretion but one of entitlement, Clause 43(2) does not bite. The Bill says no more about how you do it, what the courts will do or anything further. The procedure that the Government have in mind—and I hope my noble and learned friend will be able to confirm this—is the procedure under Order 53 of the Rules of the Supreme Court, which is called "judicial review". This is a new remedy which has been in being for only a few years. Consequently, the Supreme Court practice book—the White Book as the lawyers know it—has very few notes about the way in which the new Order 53 works. Broadly speaking, it replaces the old prerogative remedies and gives the courts extra powers to grant injunctions and declarations by way of supplement to their discretion to, for instance, the old order of certiorari.

I wonder whether this is the right remedy and I will tell your Lordships why. I am sorry it has to be technical, but this is a very technical affair. The history of the orders which are now incorporated in the judicial review has been built up by the courts over a period of time and they correct the abuse or misuse of power of the executive. What they have never done, and, as I understand the situation, still do not do under the new provisions of judicial review, is to act as a court of appeal on fact, and above all not on fact when decisions have been given by Parliament to one or other executive body.

I should like to illustrate the matter in this way. The other night I raised the question of the entitlement that occurs under Clause 3 to a person born outside the United Kingdom. The baby can be registered within 12 months of birth, provided that one of the parents in question satisfies all the four requirements in Subsection (2) of Clause 3. As I pointed out the other day—and my noble friend Lord Geddes raised this point on an earlier amendment—we have the term "a close connection" involved. My noble and learned friend said late on Thursday night that these were two familiar words and everybody would know what they meant; but, as a matter of fact, the Committee, upon reflection, will see at once that there will be ail sorts and conditions of circumstances which have to be considered to see whether the case in question falls on the one side or the other of the borderline, whether or not there is a close connection.

Let us take a decision under Clause 3(2)(d) that the parent in question intends to maintain a close connection. All the facts will be set out. And let us suppose that the Home Office comes regretfully to the conclusion that they do not think that the parent in question does intend to maintain a close connection. According to my understanding of the Government's intention, that decision could then be taken to the court by way of judicial review. There will be affidavits which set out the material that was put before the Home Secretary in order to try to persuade him that the parent in question did intend to maintain a close connection. No doubt there will be an affidavit from the Home Office saying that this matter was considered and, for reasons that are given, they considered it was not a close enough connection or that the intention was not permanent or something of that sort.

What happens? What will the courts do about this? Are they going to look at these facts afresh and act as a court of appeal on those facts and decide for themselves, "No, we place ourselves in the position of the Home Secretary. We reverse his ruling because having taken into account all the facts set out in these affidavits we think that this does constitute an intention to maintain a close connection"? Or will they not? I would suggest to the Committee that they are much more likely not to do so because of the background I have set out whereby judicial review follows on this age-old tradition of merely correcting abuses.

My noble and learned friend might like to consider this point. What does she think of the proposition that the court might, in answer to the question that I have notionally put to it, merely say this: If on the evidence taken as a whole the Secretary of State has grounds, and reasonable grounds, for coming to the conclusion that the parent does not intend to maintain a close connection with the United Kingdom, this court will not interfere. That is what the courts tend to say and, with a minor alteration, I am taking it straight from the words of the present Lord Chief Justice on an immigration case. That is the pattern of what happens on judicial review, because the courts do not like being put into a position under this procedure of having to act as a court of appeal on fact.

If that is a correct analysis of what will happen, without having to go into the subsidiary question of whether or not cross-examination will be allowed (which is in the rules but as far as I know has never previously been allowed in an individual case), without going into any of those details, the whole of the remedy which has been held out by the Government throughout the course of the Bill as providing for a correction of mistakes in cases where there is an entitlement under the Bill and an entitlement which many of your lordships believe to be an absolutely vital, quid for the quo of losing jus soil, the whole thing will turn out to be entirely without foundation. There will in fact be no real appeal at all and the decision will rest with a well-worded letter from the Home Office which cannot in practice be challenged.

I do not wish to be hostile about this. I understand perfectly well that the intentions of my Front Bench are that there shall be an appeal and where there is an entitlement it will not rest, as do other sorts of decisions, simply with the Home Office and can be taken no further. What I do not understand at the moment is how they see it fitting into the system of the courts and the procedures as we have them now. I put down this amendment to test the point. Upon reflection, I think it does not go nearly far enough, because I do not think it provides enough positive rights. But, at any rate, it will do to get the discussion going, and I hope very much that my noble and learned friend will be able to give me satisfaction on this on a practical basis, saying how it will work, so as to make quite sure that we are not passing this legislation in the belief that there is a remedy only to find out far too late that the whole thing is a sham. I beg to move.

The Chairman of Committees (Lord Aberdare)

If this amendment is agreed to, I cannot call any of the remaining amendments to Clause 43.

The Lord Advocate (Lord Mackay of Clashfern)

I am sure that the Committee will be grateful to my noble friend for the spirit in which he addressed himself to this matter and the atmosphere which he has sought to continue from that which prevailed on the Supreme Court Bill. May I first of all try to answer the two specific questions that he raised at the beginning? Apart from the omission which he himself has noticed, I think that his clause covers all the provisions in the Bill which he would have intended it to cover. So far as the Immigration Act amendment is concerned which is contained in Clause 38 of this Bill, our view is that that has made amendments on provisions of the Immigration Act but the amendments are inserted into the Immigration Act and accordingly the provisions relating to appeals and so on in the Act are not interfered with by that amendment.

If I might now address myself to the main matter which my noble friend has raised, as I have sought to explain earlier the intention of the Government is that, where under the Bill there is an expressed entitlement to registration, that should be a right which is subject to the appeal, subject to adjudication by the court. The phrase which is in that sort of provision about the Secretary of State being satisfied is one which we have undertaken to look at in order to give effect to that view. Accordingly, so far as the substance of the matter is concerned, I think there is no difference between us in that our intention is that there should be a right to go to the court to have the matter determined.

My noble friend has asked what the procedure would be. Of course, the Bill does not attempt to lay down the procedure, that being more a matter for the court itself. I certainly understand that the most likely procedure to be available and suitable for this problem as far as the English courts are concerned is the new Order 53 provision. Of course, as my noble friend knows, the new Order 53 for judicial review provides that in an appropriate case the court may give a declaration of rights as well as effect relief such as would be given under the old prerogative writs or prerogative orders. Accordingly, the procedure that would apply for a declaration in a suitable case would be available in such a situation.

The problem of "close connection" has been referred to more than once, and I agree that the question of application of that test to particular circumstances may not always be easy. I do not regard the difficulty as arising from any doubt about the meaning of the words "close connection", but rather from the application of these to different circumstances. Our view is that in the situation where an entitlement applies, the court will have the responsibility of determining whether that entitlement exists, and that, therefore, is not a situation in which any kind of discretion to the Secretary of State would arise. If the Secretary of State was entitled to reach that view, which does arise in some circumstances, we should doubt whether the formula would apply here. This is a matter which we shall, of course, consider in relation to the amendment which, I think, was originally moved by the noble Lord, Lord Gifford, a considerable time ago. Certainly what my noble friend has said today we will have in mind in considering the appropriate result of that consideration. I hope that, in the light of that assurance, my noble friend will feel able to withdraw this amendment.

4.2 p.m.

Lord Mishcon

We are all indebted to the noble Viscount and to the noble and learned Lord for a very lucid debate, so far, on a vital matter. I imagine that there will be no difference at all on any side of the Committee. once one accepts the fact that there is a need for an appeal; certainly, where the question of entitlement is concerned. Some of us feel that it should also be there in other circumstances where discretion applies, but we are not going to debate that on this amendment. I ask for the Committee's indulgence while I go further into this matter only because, since there will be consideration between now and Report stage, I want—if I may say so, in all humility—the Government at least to know what is the position of my noble friends on this matter, although I believe it is a position which will be held by the majority of the Committee. I would even be optimistic and say that it will be held by everybody in the Committee.

The noble Viscount made a most important point when he said that if there is to be a right of appeal on entitlement, it must be clear beyond peradventure in the Bill that the court or tribunal that hears the appeal can do so de novo. It can open the matter as though the court were, indeed, the Secretary of State, looking at all the evidence. The noble Viscount, very correctly, took as his example Clause 3(2)(d) of the Bill. He mentioned only the first part of it because, out of consideration to the Committee, he wanted to be brief. But there is a second part to it.

He mentioned the first part, that the parent in question intends to maintain a close connection with the United Kingdom", and that can well be held to be a question of fact. The noble and learned Lord may well say, as he has said before, that a close connection is pretty obvious. You look at the facts of each case and decide it. But I ask your Lordships to look at the second part of that paragraph which reads: … or, if the parent in question has died since the birth, that he or she had that intention at the time of the birth. What an area of evidence can be covered by any such situation! I think the Committee is anxious that the appeal procedure, which the Government have been good enough to say they will now, in view of the opinion of the Committee, put into this Bill, shall be abundantly clear as being a procedure which enables the appellate court or tribunal to look at all the evidence and to make a decision of its own.

If I may say so with the greatest of deference, the noble Viscount was absolutely right when he talked about the limitation, so far as lawyers know it to date, of the judical review procedure. Most of us feel that the judicial review procedure will be upon the basis: "Has there been a quite apparent miscarriage of justice? Have the rules, as it were, been observed in coming to a decision so far as the Minister is concerned?" If they have been observed, then it is very likely—I put it no higher—that the judge conducting the judicial review will say: "I need go no further".

So I make an appeal on behalf of my noble friends with the same voice, if not so eloquent a voice, as the noble Viscount, that, whether the Government make it the tribunal which the noble Viscount was talking about on his important amendment on another occasion, whether they make it the tribunal that my noble friends and I advocated in a certain amendment or whether it be the High Court, it must be a procedure that allows the applicant to go with his case to the judge or to the tribunal, on the basis that it should be heard with all the evidence that was before the Home Office, and with the court or tribunal free to make its own decision in the place of the Home Secretary if the court or tribunal feels that the decision is wrong.

There is only one other matter that I wish to raise and I shall then sit down very rapidly. The noble Viscount, in my respectful view, was also correct in saying, when he referred to the provisions that amend the Immigration Act 1971, that he wanted to be abundantly sure that the right of appeal before the tribunals set out in the Immigration Act should, without any question of doubt, still be available. The noble and learned Lord said very clearly: "That is our view". I would plead with him, so that there is no dubiety at all, that at Report stage there should be brought into the Bill a clear statement in a suitable place that nothing else in the Bill affects the rights of appeal in the Immigration Act, as amended by this Bill.

4.7 p.m.

Lord Boyd-Carpenter

I do not think it is necessary, at this stage, to add anything on appeals in entitlement cases, because my noble and learned friend himself, on a much earlier amendment some days ago, during a debate in which I took part, gave the clearest possible undertaking that the Government would be looking into this between now and Report stage. I am sure that he took on board the view then expressed, which has been re-echoed this afternoon by the noble Lord, Lord Mishcon, that the kind of appeal in those cases will not be the kind of appeal in which the onus falls on the appellant of establishing that no reasonable Secretary of State could possibly have come to the view complained of, but that it will rather be a case, as the noble Lord, Lord Mishcon, has said, of the appellate body, whatever it is, having the right to look at the whole facts of the case and to see the case as the Home Secretary originally saw it, in order to see whether they come to the same view. As is it clear that the assurances we have been given cover that, then it would be premature before the Report stage to say anything more on that.

But I am moved by this amendment simply to ask one question on the construction of this clause, about which I am puzzled. This clause deals with discretion cases and subsection (1), on which the amendment does not bite, lays down the impeccable sentiment that the discretion, shall be exercised without regard to the race, colour or religion of any person who may be affected by its exercise". If one then reads subsection (2), one sees that recourse to the courts is excluded in these discretion cases. Subsection (1) deals with a discretion case. Does it, therefore, follow logically that there is no sanction whatever on the Secretary of State to act as laid down in subsection (1)? Alternatively, if we had a Secretary of State—and I hasten to say that no one would suggest it of the present one—who allowed any of these decisions to be affected by any of these considerations, would the person complaining, the person who thought this had happened, have any right of access to the courts at all? If he has not, then really the impeccable sentiments set out in subsection (1) are hardly worth the paper they are written on.

4.11 p.m.

Lord Mackay of Clashfern

May I first of all make it clear that the undertakings which I gave earlier were to consider the expression that was used in the Bill, "the Secretary of State is satisfied", with a view to seeing whether that expression caused an impediment to the achieving of the result which we said was achieved. I have never said that we agree that it is necessary to bring any kind of appeal procedure into this Bill for that particular matter. What we have said is that we want to consider the words to make sure that a person has access to the court in order to vindicate his rights in the entitlement situation. That seems to me to cover the right in a way more directly than an appeal. The very idea of an appeal procedure may not be the best thought for this. This is a situation in which a person has a right which, in our view, he should be entitled to vindicate. That is the purpose that we have in mind and which I think would entirely match the object that my noble friend Viscount Colville had in mind.

So far as the question that is raised by the noble Lord, Lord Boyd-Carpenter, is concerned, the view which I would suggest to the Committee is the correct one is that Section 43(1) is a very plain direction to the Secretary of State, to a Governor or Lieutenant-Governor, and I would take the view strongly that that is a very clear statement which we would not anticipate ever being breached. It seems quite inappropriate to go on to provide any formal sanction, but I feel fairly certain that the court would take account of Section 43(1) in considering the scope of Section 43(2). There are authorities, as I am sure my noble friend is aware, which state that however wide an exclusion of the court's powers of review may be in form, in fact it applies only to the area of jurisdiction which Parliament has given to the inferior tribunal or statutory authority. Therefore, in considering the scope of subsection (2) the court would certainly have regard to the existence and effect of subsection (1).

Lord Rawlinson of Ewell

While I agree with my noble and learned friend in what he has just said, he rather foreshadows what we are going to discuss, perhaps in the next amendment to be moved by the noble and learned Lord, Lord Elwyn-Jones, and perhaps my noble and learned friend would consider that there would be much merit in that amendment, merely to make it absolutely clear that subsection (2) is governed by the first few words in subsection (1). Therefore, while I would very much agree with my noble friend in what he just said as to what is the probable actual construction of subsections (1) and (2), nevertheless I hope he will look with considerable favour on what I understand is going to be moved by the noble and learned Lord in the next amendment.

Lord Elwyn-Jones

I was tempted to intervene to make the point the noble Lord, Lord Rawlinson, has just made in the light of what was said by the noble Lord, Lord Boyd-Carpenter, but perhaps, as I see eagerness to deal with the Statement, it would be appropriate for us to deal with that matter when I move my amendment. As to what has been said on the amendment moved by the noble Lord, Viscount Colville, he will no doubt give his decision upon the matter. I confess that we found somewhat disappointing the words of the noble and learned Lord, the Lord Advocate, in his response, and in view of the great importance of this I wondered whether it would be possible before the actual day of the Report stage if we could get some indication from the Government, by correspondence if possible, as to what they have in mind. Because clearly this is going to the root of much of the anxiety that has been created by the Bill, namely, the apparent rightlessness and parlous situation of people whose rights may be very seriously and adversely affected.

Viscount Colville of Culross

I imagine it would be the wish of the Committee just to finish this amendment before we take the Statement, and I will do so very quickly indeed. As one footnote to the point made by my noble friend Lord Boyd-Carpenter, I would say that the difficulty about getting the courts to come to the interpretation that he foreshadowed, as did also my noble and learned friend, is that you have a sort of Anisminic type case, where the difficulty is such that it is only in this House that the matter is finally resolved. That is an extremely expensive way of doing it for the sake of two or three words in the Bill which would save all that trouble. On the main point, I understand perfectly well the scope of the undertaking that had been made earlier by the Front Bench about the Secretary of State's being satisfied. What I had hoped to do in this amendment was to deal with some of the mechanics of the way in which judicial review works, and I have welcomed the support of the noble Lord, Lord Mishcon, on this. I think everybody agrees that there is a real problem here.

I think I must say finally to my noble and learned friend Lord Mackay that he referred to the extension under Order 53 of the remedies so that they now include an injunction and a declaration. With the greatest deference, I would invite him to talk to the judicial authorities about that. I think he will find that although those remedies have been put in, they have not extended the fundamental scope of what the order for judicial review covers. They have not enabled declarations to be given except when an abuse of power has been discovered; they have not changed the fundamental tests by which the courts decide in their discretion whether or not to make an order of certiorari. In other words, there is no new additional fact-finding machinery that has been built in by the addition of these two new powers. If that is right, think the force of what he said by say of reply to me very largely falls away and we are back with the quotation from the Lord Chief Justice that I gave him.

I want to withdraw this amendment quickly. I hope my noble and learned friend will respond to the invitation of the noble and learned Lord, Lord Elwyn-Jones, to tell us early what is going to be done, because we shall need to know about this. I hope that he will carefully consider what has been said and that we may revert to this matter when we come back again on Report. i thank him very much for what he has said, but I am afraid that unless he comes up with something which is satisfactory we shall have to go back to it. I leave one thought in his mind. Would it be possible to provide in the Bill as an absolute minimum something like "subject to rules of court" or "the ability to make rules of court" to deal with this question as a supernumary to Order 53 if it should turn out that that order is inadequate? I just leave the thought with him that that might be one of the ideas to consider. I thank those who have taken part in this debate, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Parliamentary Under-Secretary of State, Department of Trade (Lord Trefgarne)

I understand that it would now be convenient to take the Statement. I beg to move that the House do now resume.

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

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