HL Deb 02 March 1993 vol 543 cc648-54

9.—(1) Where—

  1. (a) under Part II of the 1971 Act (as it applies by virtue of Schedule 2 to this Act) an appeal has been brought to the Immigration Appeal Tribunal from a determination of a special adjudicator, and
  2. (b) the Immigration Appeal Tribunal has made a final determination of the appeal,
any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination.

(2) An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, with the leave of the appropriate appeal court.

(3) In this section "the appropriate appeal court" means—

  1. (a) the Court of Appeal where the determination of the special adjudicator was made in England or Wales or Northern Ireland; and
  2. (b) the Court of Session where it was made in Scotland.

(4) Rules of procedure under section 22 of the 1971 Act may include provision regulating, and prescribing the procedure to be followed on, applications to the Immigration Appeal Tribunal for leave to appeal under this section.").

The noble Lord said: My Lords, with Amendment No.35 we come to the much wider issue, of which my previous amendment was perhaps only a special case. In case it is not clear, Amendment No.35 seeks to remove all four of the amendments put into Clause 9 by the Government late on the evening of Thursday, 11th February. I can do no better than read the entire speech of the noble Earl, Lord Ferrers, in moving the amendment (just before 11.45 p.m.): In moving Amendment No.40 I wish to speak also to Amendments Nos.41, 44 and 46. This group of amendments will extend the new avenue of appeal, which is created by Clause 9, from asylum cases only to all final determinations by the Immigration Appeal Tribunal. It will, I hope, be generally welcomed by the Committee. It means that the opportunity to seek leave to appeal on a point of law to the relevant court will be available both in asylum and other immigration cases. I beg to move".—[Official Report, 11/2/93; col. 888.]

To my shame, I did not respond to that because I did not see the significance of it. The significance of what was being done to Clause 9 was very great and much wider than suggested by the entirely harmless little speech of the Minister. The first point I make is that, in extending the scope of Clause 9 from asylum cases only to all final determinations by the Immigration Appeal Tribunal, at the very least he runs the risk—and in the view of many qualified people has incurred the fault—of going outside the Long Title of the Bill. As far as immigration is concerned, the Long Title says, to restrict certain rights of appeal under the Immigration Act 1971".

I suggest to the House that what the amendments did in extending the final determination from asylum cases only to all final determinations by the Immigration Appeal Tribunal was in effect to take away the right of judicial review from immigration appeals as well as from asylum appeals. It applies to all immigration appeals under Part II of the Immigration Act 1971 and not simply to certain rights of appeal as is suggested in the Long Title.

On that issue alone I suggest to the House that the amendments extend the law in relation to immigration appeals wider than the scope of the Long Title. They make judicial review unavailable to those who have been subject to final determination by the Immigration Appeal Tribunal because judicial review is the only alternative remedy. An appeal on a point of law to the Court of Appeal will amount to a remedy which therefore prohibits the use of judicial review because judicial review is not available on the ground that the remedies available have not been exhausted.

No one wants to encourage judicial review itself, but if the alternative is between judicial review and a consideration by the Court of Appeal, I suggest that we have to look very closely at the arguments, at the costs, and at the issues of natural justice involved.

Judicial review, after all, invloves only one divisional judge. He acts on his own. The Court of Appeal is made up of three appeal judges. It goes through many formal procedures. The cost must be several times that of a judicial review. The logjam in the Court of Appeal is very severe. At Second Reading noble and learned Lords referred to the judicial review logjam. No one wants to increase the logjam but if the alternative to one logjam and one cause of delay is another, it is difficult to see what justification there is.

The point about the Long Title—this is my final point before I go on to the more substantive issue of judicial review—is that the Long Title specifically says that the Bill is creating new rights of appeal for asylum seekers. That is what we always understood Clause 9 to be attempting to do and that is why our reaction to Clause 9 has on the whole been favourable. But what we are now saying is that Clause 9 as amended in Committee—it should not have got past us; we were at fault and should have noticed—is very much less acceptable than it was.

I turn to the more general issue of the dangers of bypassing judicial review. If one bypasses judicial review one cuts out a whole level of protection—the level of protection in the High Court. The ability of the High Court to scrutinise decisions is a vital step in the due process of law. Even if there were a case for introducing a statutory right of appeal from decisions of the Immigration Appeal Tribunal there is no case for going straight to the Court of Appeal.

The High Court is presently used in all kinds of other cases —planning appeals, social security appeals, coroner's appeals and so on—and it has not only the advantage that its terms of reference are more wideranging than the Court of Appeal but it leaves open the possibility of judicial review. If Clause 9 remains with the Government's amendments in it the Court of Appeal will be the first opportunity for administrative law arguments—arguments of fairness, procedural impropriety, natural justice and legitimate expectation—to be aired. But these matters—I am now prepared to say this as a statement rather than a question—are outside the remit of the Immigration Appeal Tribunal.

Therefore, the answer which the Minister gave to me in response to the last amendment—which was that the Court of Appeal considers those matters which are within the remit of the Immigration Appeal Tribunal—he can now confirm. I am sure that he will be able to do so now that he has got advice; namely, that these matters of administrative law are outside the remit of the Court of Appeal because they are outside the remit of the tribunal.

If that is the case—and I claim that it is—then the alternative of having the remedy of the Court of Appeal is a very much poorer alternative than having the combination of High Court and judicial review where administrative matters can be taken into account.

Perhaps I may make one more point. I am sorry to go on for so long but these are extremely important matters which were dealt with in a very summary manner and very late at night in Committee and in a way which it—and it was our responsibility—should not have let pass. The argument has been used on a number of occasions that judicial review is undesirable in general terms because it takes so long to get there. The noble and learned Lord, Lord Woolf, made that point and we do not disagree with it.

Since Second Reading I have had an opportunity to study the most recent report of the Law Commission, Series 5, Report No. 126. The commission is concerned specifically with judicial review and does not advocate its abolition. The commission faces the problems which exist of long delays and suggests that instead of restricting access to judicial review, which is in effect what the Government are doing, they should be using more judges to deal with judicial reviews; for example, those judges currently doing family cases. Courts should be used outside London. It is astonishing that so few of these procedures are available outside London. Selected circuit judges and QCs should be used to carry out judicial reviews.

These are serious matters to be raised late at night either at Report or Committee stage. I suggest that it was the responsibility of the Government, in introducing amendments which restricted access to judicial review, to make that clear when they introduced them. I do not believe that the Minister's speech at Committee, which I quoted in toto, makes clear the implications of the amendments which he moved. Our view is that the only proper thing to do at this stage is to remove those amendments totally and to return Clause 9, with all its defects, to its condition before the government amendments.

I suggest to the House that the Government were less than open and frank with the Committee in the way in which these amendments were presented. I suggest that their implications have not been made clear. It would be wise for the Government themselves, without forcing us to seek the opinion of the House, to recognise that something is seriously wrong and either to accept this amendment or to indicate enough understanding of the thrust behind it to enable us to withdraw it on a basis that we can negotiate something effective between now and Third Reading. I beg to move.

Lord Bonham-Carter

My Lords, I intervene briefly to say that the case which the noble Lord, Lord McIntosh of Haringey, has made is a very serious one and must be taken very seriously. I very much hope that in answering the noble Earl will do so in those terms. I hope that he will respond to the suggestion made by the noble Lord, Lord McIntosh, that either the Government must make some concession or some proposal indicating that they have taken on board the implications of what he said. When the amendments were introduced in Committee on 11th February I totally missed their significance. So I was to blame, but I was to blame in good company.

Lord Renton

My Lords, I wish to make only two short points. The first is that in Amendment No. 35 the expression "material to that determination" is used. I am glad to see that he is keeping an open mind on that subject. The other point is that the noble Lord mentioned judicial review and indicated that it was dangerous, or bad to have; but one must remember that in a very high proportion of cases judicial review has turned out to be in favour of the citizen—in this case the alien seeking protection—and has not turned out necessarily in favour of authority.

Lord McIntosh of Haringey

My Lords, the noble Lord is, of course, reinforcing my point. I was not claiming the judicial review was a bad thing but that the silent removal of the right to a judicial review, which is what the government amendments did, was bad.

Earl Ferrers

My Lords, the noble Lord, Lord McIntosh of Haringey, is a very difficult person to satisfy. I thought that I had satisfied him on the last amendment and had quietened his anxiety. However, he now says he was not satisfied at all, so I despair over trying to satisfy him in this respect. The noble Lord chided me for making a short speech in Committee. If that is a failing I apologise and I can assure the noble Lord, Lord McIntosh, that I will never chide him for making short speeches—I daresay I shall not have the opportunity to do so.

In, this amendment the noble Lord seeks to reverse a decision which was taken by your Lordships in Committee, and I wonder whether that is wise. In fact, I find it quite surprising. The effect would be to undo the amendments which were made in Committee and it would restrict the new avenue of appeal to asylum cases only. The creation of an avenue of appeal from the Immigration Appeal Tribunal to the courts on a point of law is a change which has been advocated for many years by the Council on Tribunals and by many of those who represent appellants. The Government accepted that it was right to take the opportunity afforded by this Bill to effect a modest and, one would have thought, uncontroversial reform.

But the noble Lord, Lord McIntosh, does not see it that way. Instead of welcoming that extension of the new avenue of appeal, the noble Lord seeks to reverse it. He even mentioned the matter of relevance to the Long Title of the Bill. I can only tell your Lordships that Clause 10 will have the effect that judicial review will be available in fewer cases than at present because of the avenues to the Court of Appeal. But it will still be available in some cases where it remains an appropriate remedy. The Court of Appeal can look at administrative law if it is relevant.

The tribunal is not the High Court: its jurisdiction is inevitably more limited. But Clause 9 has nothing to do with abolishing or restricting judicial review. In so far as points of administrative law are material to tribunal determinations, the Court of Appeal may deal with them on a Clause 9 appeal. If a point of administrative law is not within the scope of an appeal under Clause 9, the judicial review would still be available. So those avenues of appeal are available, and I hope that the noble Lord, Lord McIntosh, agrees that it would not be suitable to take out that which many people considered desirable in Committee.

Lord McIntosh of Haringey

My Lords, the Minister is saying something different now from what he said on the previous amendment. On the previous amendment I asked whether matters of administrative law could be dealt with by the Court of Appeal. He said that they could if they were within the tribunal's remit. I say to him now, as I said to him a few minutes ago, that it is my firm conviction that they are not within the tribunal's remit. He now says that the Court of Appeal can take into account matters of administrative law if they are relevant. I have quoted what he just said. I do not know what "relevant" means. Under the rules of procedure, on Report I cannot cross-question him on that issue. I am suspicious because his answer is different from the answer he gave a few minutes ago.

It is a matter which we should discuss elsewhere between now and Third Reading, rather than across the Floor of the House. I pay deep attention to what the Minister said about the ability to seek judicial review, even after the Court of Appeal has considered the matter, if there is a relevant matter of administrative law. I do not know what that means. I do not know the extent to which considerations of administrative law have at some stage been excluded from the process between the tribunal and the Court of Appeal.

I heard no effective response to my argument about the Bill's Long Title. I did not hear any argument to the effect that a Long Title which restricts certain rights of appeal can possibly apply to a restriction of all rights of appeal under immigration legislation; in other words, in many ways I am deeply troubled by the Minister's response. I wish to talk to him calmly across a table rather than across the Floor of the House between now and Third Reading.

These are matters of the utmost importance, even at this time of night. I apologise for detaining the House, but I believe that I have been justified in so doing because the Minister's response did not indicate that I am being unreasonably cautious or suspicious about the Government's intentions or the effects of their actions. Pending further discussions to which I know the Minister, with his usual courtesy, will agree—I do not need to ask him—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

House adjourned at eighteen minutes past eleven o'clock.