Nationality, Immigration and Asylum Bill

HL Deb 29 July 2002 vol 638 cc676-738

2.59 p.m.

Lord Filkin

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 Filkin.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE CHAIRMAN OF COMMITTEES in the Chair.]

Clause 82 agreed to.

Clause 83 [Appeal from outside United Kingdom: removal]:

Lord Filkin moved Amendment No. 199B: Page 45, line 22, at end insert "(except in a case to which section 82(5) applies).

On Question, amendment agreed to.

Clause 83, as amended, agreed to.

Clause 84 [Earlier right of appeal]:

Baroness Anelay of St Johns moved Amendment No. 200: Page 45, line 25, leave out "the Secretary of State or an immigration officer" and insert "an adjudicator

The noble Baroness said: In moving Amendment No. 200, I wish to speak also to Amendments Nos. 201 to 205 which are grouped with it.

Clause 84 gives the Home Office power, in taking immigration decisions, to certify that a person ought to have raised an issue by way of an earlier appeal. Such persons will have no right of appeal to an adjudicator against the decision.

An essentially legal process will be able to take place without the involvement of the judiciary. We believe that this is a blot on the principles behind this clause which we otherwise can support.

The clause means that a caseworker whose rank we do not know—it could be very junior—can make a decision and certify that an appeal cannot be made against it. Such a decision could be wholly contrary to the interests of the applicant. So a junior caseworker could make the decision then the certification and the appellant would never see a judicial person. Indeed, the Minister in another place, Beverley Hughes, accepted on 11th June in Commons Hansard at col. 823 that the situation "might, in theory, arise". How she could think that it might occur only in theory defeats me. Surely it will happen in practice too if the clause bites.

As my honourable friend Mr Malins said in another place, There is a point of principle involved here: the taking of powers out of the hands of the judges and putting them into the hands of the state is something to be avoided whenever possible"—[Official Report, Commons, 11/06/02; col. 818.] Can it be right that a junior caseworker can be judge and jury? Why should not the certification be made by an adjudicator rather than by the caseworker? Caseworkers may be well trained and good at their job but they will not carry the same weight as someone who has judicial standing.

If the Minister puts forward the view that the measure would take up more of the adjudicator's time, my further question has to be: what is wrong with that if it is a case of getting things right? Adjudicators are the right people for the job. At least the decision-making process would be fairer and more appropriate than it is under the provisions of this clause. If the Minister further puts forward the view that this would start to unravel the one-stop appeal process, I would have to beg to differ. I believe that it would still be effective and would have more force and integrity with the involvement of an adjudicator.

I turn briefly to Amendment No. 205. Although this does not overcome the fundamental objections which may be made to subsections (1) to (3), it places on the Secretary of State an obligation, subject only to reasonable belief rather than the need to be satisfied, not to deny rights of appeal unless a person has had access to competent legal advice. It is a minimum safeguard against the abuse of executive power. I beg to move.

Lord Goodhart

The grouping which includes the amendment just moved by the noble Baroness, Lady Anelay, also includes the Question whether Clause 84 should stand part of the Bill. We on these Benches believe that Clause 84 is a dangerous clause which is contrary to natural justice and ought to be removed altogether.

As the noble Baroness, Lady Anelay, has already mentioned, the main objection to the clause is that it gives the Secretary of State or the immigration officer the right to block appeals against their decisions or, in the case of the Secretary of State, those of members of his own department. The Secretary of State is not a judge and immigration officers are not judges. Therefore, if there is no appeal, there is no judicial process involved here except the possible judicial review of the certificate made by the Secretary of State or the immigration officer. In our view it is not desirable to have to rely on judicial review. However, if judicial review takes place, it is more likely to succeed in the case of a decision by an interested party than where the court reviews the decision of a judge such as an adjudicator. Therefore, we believe that the clause will be counter-productive in so far as it is likely to increase rather than diminish the number of cases in which judicial review applications will be brought and in which they will succeed.

Under subsection (1) of Clause 84 the question as to whether a person's motive for bringing an appeal on a new issue is proper or improper is much more appropriately decided by an independent person than by an executive authority such as the Home Secretary or an immigration officer. Under subsection (2) of Clause 84 the view as regards which issue should have been taken at an earlier stage is once again a matter for an independent adjudicator, not for an executive officer. Subsection (2) of Clause 84 is also defective in substance in that it allows a certificate to be given under paragraph (c) without considering whether there are reasonable grounds for not having exercised a right of appeal against the earlier decision.

Clause 84 caused considerable concern to the Joint Committee on Human Rights, which stated at paragraph 103 of its report: When making a public authority the judge of the merits of the case against it, there is a real danger of compromising the independent scrutiny which lies at the heart of the values of the rule of law". The Government are concerned that the appeal system should not be open to manipulation. No doubt there are appeals which are brought without justification. But it is for the judicial body to which the appeals are brought, not the executive, to decide which appeals are unjustified. A process which required the adjudicator to give leave to appeal in circumstances covered by Clause 84 might be acceptable. It might take up somewhat more time and cost, perhaps a little more than with the present situation. It is not certain that there would be a saving on judicial review. But even if there is some increase in time and cost, that is surely a price worth paying for protecting the basic principles of natural justice.

Earl Russell

I want to add only a small footnote to what my noble friend Lord Goodhart and the Human Rights Committee have said. It is well known that there are certain things about which those who have suffered them find difficult to speak. It is commonly known in this Chamber that I once had a male pupil who was unjustly accused of rape and was acquitted. It is not so commonly known that on the same day a young woman came through my door who had been raped at knifepoint in a dark alley in Southwark. She was never able to bring herself to report it and I believe to this day has not done so. That does not mean that were she to tell anyone now there would be any reason whatever for disbelieving her. Refusing to believe a story told late is a very common way of denying justice.

Baroness Carnegy of Lour

I hope that the Government are saying attention to what Members of the Committee are saying with regard to the amendment, as I hope very much they paid great attention to the discussion late on Tuesday night of last week when an enormously important debate took place which, unfortunately, I could not attend.

The Government are absolutely right in their aspiration to try to speed up the handling of asylum seekers' cases. That is vital. However, it is equally important that the experience that asylum seekers have of this country, and the experience that the rest of us have in watching how the Government handle that matter, do not undermine our justice system, our sense of right and wrong and, indeed, our desire to keep in tune with the human rights convention. Therefore, I hope that the Government are paying much attention to the matter.

Lord Clinton-Davis

I hope, in following the noble Baroness, that my noble friend will understand that cutting out the judiciary in the way proposed is not acceptable to many of us. I shall listen very carefully to the argument that he adduces. I make it plain, and I believe that he will admit, that the onus rests heavily on the Government. My current view is that to cut out the judicial approach to the asylum seeker who seeks it is entirely wrong. It is not that I feel that the judiciary is somehow superior; it does not claim that. It claims that it will listen very carefully to the legal arguments that are presented before it before making a decision. I do not think, with respect, that the executive officers or the Secretary of State can in any way be a substitute for the judicial approach. At the moment I favour the noble Baroness's amendment.

Lord Brooke of Sutton Mandeville

By chance, Mr H.F. Ellis will be commemorated in a broadcast on Radio 4 tomorrow morning at, I believe, 11.30. He was a freelance journalist who made his living lightheartedly over many years, and he died recently. I invited him 37 or 38 years ago to address a business dinner. He confessed, when he spoke—it was at Christmas-time—that he was not sure why he had been invited until he had worked out that he was in the same business as those who were present: of seeking to sell articles for more than they were genuinely worth. He explained that his bank had just written to him to reveal that, having long since removed his money from the branch where he kept his account, it was now going to remove the account as well. He said, "You do begin to wonder why they have a branch system at all if neither the money nor the account is there".

Banks have their own responsibilities towards their customers and have to convince them that what they are doing is sensible. In this regard, we are talking about the rights of asylum seekers and the slight casualness in that regard. We are long since used to the Secretary of State being the subject of sentence after sentence in such legislation, although we all know that decisions are taken at a level below that of the Secretary of State; nevertheless, the reference is to the Secretary of State. That provision is now being widened in the clause. As my noble friend said when she moved the amendment, there is a view on these Benches that more precision and balance should be maintained and that the judicial process should not be eliminated altogether.

3.15 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton)

This is an important clause. In effect, Clause 84 builds on the one-stop system that was introduced in 1999. That one-stop system in effect requires that where there was an opportunity to appeal, the asylum seeker should raise all the points of appeal at that one appeal and that they should not be dealt with bit by bit. We believe that our approach is sensible. However, in view of what the noble Baroness, Lady Carnegy, in particular said, I should deal with the matter at some length and explain in detail the reasons for our approach. I also make it absolutely clear that we are listening very carefully to what has been said in particular in the debate that was referred to earlier; I was present at that important debate, at which a large number of important points were made, albeit late at night, but none the worse for that.

I ask Members of the Committee to consider seriously what the result would be if Clause 84 were not agreed to or if the adjudicator's role were inserted to it, as the amendments propose. The one-stop system, which was introduced in 1999, has been a success. It helps the IND to consider all aspects of a case more efficiently. It gives those with a case the chance to put forward at an early stage the whole of that case and to have an earlier decision, and it stops those who put forward late claims preventing the reasonable implementation of an asylum decision. It stops no one having a right of appeal and a right of appeal to a judicial officer. It stops no one claiming asylum or putting forward human rights grounds. It simply stops them successfully delaying or evading a removal, the reasons for which they had an earlier chance to dispute and to do so before a judicial figure. Consider how much more efficient and fair it is to deal with all points of appeal at one go.

In the calendar year 2001, there were nearly 88,000 asylum refusals, nearly 43,000 appeals during that year and nearly 34,500 appeals were dismissed. There is no reason why those dismissed cases should have another chance to appeal. However, there is also no reason why those who did not appeal should have another chance to appeal later. Our proposed arrangements will stop that.

There were another 45,000 asylum cases that had the chance to appeal but that was not done. That is a possible 80,000 abuse of appeals that we could prevent. There would be more if there were no one-stop system and people could appeal again and again. That involves merely the asylum cases.

Earl Russell

Does the noble and learned Lord understand that justice was not meant to be convenient for the executive?

Lord Falconer of Thoroton

The noble Earl would be the first to agree that there has to be an end to litigation at some stage. An end to litigation requires a fair opportunity to put the point of view or the grounds of appeal. However, if that ground of appeal is not pursued or if it is pursued, heard and rejected, justice becomes clogged up if again and again people have the right to put again arguments that they had had the opportunity to put or which they had already put. A balance has to be struck. That is what the 1999 legislation sought to do. I shall come in a moment to the views of the courts in that regard. There have been a number of judicial reviews.

We have to look at the clause in the context of what is currently happening before we can seriously consider the proposed amendments. Clause 84, as I said, simply builds on existing legislation. This is the position. The 1999 Act introduced the one-stop procedure. The intention is that we will deal with all the applicant's issues quickly and at once instead of bit by bit. That benefits those who do qualify to stay here and gives a quicker final answer to those who think that they qualify to stay here but who do not. In particular, it helps to dispose of those cases where previously a hopeless application was strung out and last-minute claims were made to prevent a perfectly legitimate removal. It also reduces administration costs, support costs and legal costs. I am sure that no Members of the Committee would suggest that that is an irrational or unfair way of doing things.

Lord Clinton-Davis

I seek some information from my noble and learned friend. Have any of the cases that were heard again succeeded? If so, why have they succeeded and what is their proportion of the whole?

Lord Falconer of Thoroton

As I said, 43,000 cases were appealed and 34,500 had their appeals dismissed. In relation to those caught by the 1999 one-stop shop, 700 late claims were certified as ones in relation to which there could not be a appeal and three applications were made for judicial review, two of which were refused permission on the papers and one of which was refused after an oral hearing. The position under the 1999 Act is that 700 people were denied the right to make an appeal again. Three applied for judicial review and all the applications for judicial review were refused at the leave stage, either on paper or after an oral hearing. Therefore, it appears that the system is not unsuccessful.

As I said, the 1999 Act set up a system which, in effect, allowed the prevention of repeated appeals. Some applicants, and nearly all those lodging an appeal in-country, are required by Sections 74 and 75 to disclose their full grounds for remaining here. They are given a formal notice which warns them that, if they raise a matter later which they should have raised at that point, they may not be able to appeal on that particular ground. Therefore, applicants are being told that they must raise all their grounds for appeal.

Section 73 applies if an appeal is dismissed. We notify the failed asylum seeker that he is to be removed following dismissal of his appeal and set up arrangements with the carrier. At the last minute, he may claim that he should not be removed because he has a long-standing relationship with someone living here. We would then consider that claim fairly on its merits but, if the claimed relationship was not mentioned earlier to us or to the independent adjudicator, we would ask ourselves why. If we decided that the claim was to be refused, if it appeared to the Home Office that the claim was made to delay a legitimate removal and if the Home Office could discern no legitimate purpose in making it, then it might certify the case so that the refusal did not attract a right of appeal.

Certification does not have to take place. It is discretionary and subject to judicial review, as is the decision to refuse the claim. Therefore, decisions that are made must be reasonable. But all that takes place after the asylum seeker has had the opportunity to put forward all his grounds to the adjudicator as to why he should stay and after a warning has been given that all the grounds must be put forward. From the way that the system works, it is also plain that if there appears to be something in the grounds put after the opportunity for appeal and if it does not appear that it is simply a reason to delay, then no certificate will be given preventing the further appeal. Is that a sensible system? Is it one that deprives the applicant of the opportunity to put—

Lord Goodhart

I am grateful to the noble and learned Lord for giving way. He said that if something arises afterwards which shows that there are grounds for appeal, then the certificate will not be given. But is it not the case that, under the 1999 Act procedure, the one-stop shop on the face of the Bill only bars the subsequent appeal if it could reasonably have been included in the one-stop statement made on the original occasion? Why is the same type of protection of reasonableness not included on the face of the Bill now?

Lord Falconer of Thoroton

Certificates can be granted under Clause 84 only if the Secretary of State or the immigration officer or person is of the view that the only purpose for advancing the new ground is to delay removal. If it is a legitimate ground that could not have been raised previously, then such a certificate cannot be granted.

Lord Goodhart

That does not apply to Clause 84(2), does it?

Lord Falconer of Thoroton

Perhaps I may return to that point at the end of my submission so that I do not waste time. The critical point is that the certificate which prevents the further appeal can be granted only where its purpose is, as it were, to delay the legitimate removal.

Similarly, Section 76(5) of the 1999 Act prevents appeals against refusal of late asylum claims whether or not an earlier appeal has been determined. Spurious asylum and human rights issues are those most often raised at the last moment solely to delay removal and often in cases where neither element has featured previously; for example, where a sham marriage application has been refused or a student has overstayed and worked illegally. The one-stop system is needed to deal with those who give the terms asylum" and "human rights" a bad name. Such tactical applications may not only delay removal; they may prevent it altogether if the person takes the opportunity to abscond. The longer a delay goes on, the more difficult it is to detain applicants.

During debate in Special Standing Committee in April 1999, there was general agreement that the one-stop procedure was a positive development. But concerns were also expressed that judicial reviews would increase. The one-stop procedure introduced in 1999 works; and the more people become used to it, the better it will work. If applicants and their advisers know that they must disclose everything at an early stage and that spurious late claims will not get them anywhere, the tactic should not be used any more. Ideally, we should never need to certify a late claim because late claims should only be due to genuine changes in circumstance. We should be delighted if that were the case.

Earl Russell

Does the noble and learned Lord understand that in many communities from which asylum seekers come women who report to being the victims of rape risk disgrace and danger within their own community, as well as any penalty that they may suffer elsewhere? Therefore, when there is a late report of, for example, rape, how can he tell, until he has conducted a hearing, whether it is spurious and intended to prevent removal or whether it is for self-defence against one's own community?

Lord Falconer of Thoroton

As the noble Earl says, there may well be cases where it is appropriate for no certificate to be given. Equally, there will be cases where it is perfectly possible for a sensible officer acting on behalf of the Secretary of State to say, "It is pretty obvious that this is a late point raised simply to delay". The disagreement between the noble Earl and myself is that he rightly identifies cases where there will be real difficulty, in which case, of course, no certificate should be given. But I respectfully submit that, equally, there will be cases where it is fairly obvious that the late claim is made simply to delay removal and that is why it is being raised. It is clear cases such as that with which one is concerned and not the type of case referred to by the noble Earl where there can be a legitimate debate.

Earl Russell

I believe that what the noble and learned Lord has said is common ground between us. I do not understand how he recognises the difference between the cases.

Lord Falconer of Thoroton

It is a matter of judgment. I believe that the noble Earl is now moving his position. He shook his head when I said that certain cases were clearly raised in order to delay. That is the submission that underlies the 1999 one-stop procedure and Clause 184. I understand what the noble Earl is saying now that he accepts that there will be such cases.

Earl Russell

I do not accept that one can recognise them without a hearing.

Lord Falconer of Thoroton

There is no case so clear that it does not require a hearing. I see—that is the difference between us. That is helpful.

As I said previously, since October 2000 approximately 700 late claims have been certified to effect removal. Only three applications have been made for judicial review. Two of those were refused permission on the papers and one after an oral hearing. There have been no substantive hearings on the one-stop shop since 1999. That is good evidence that the concerns expressed then and now may well be unfounded.

Of course, some people will have been encouraged by the one-stop notice to put their whole case forward at an early stage. The result of that is that the Home Office, having a comprehensive view of the applicant's circumstances, is able to deal favourably with a case far sooner than would have been the case if the details had been drip fed, which is the consequence of not having a one-stop shop.

I have taken time to go back to current legislation so that we can sensibly discuss how we have built upon it and why the opposition amendments should not be allowed to undo what is a fair and successful procedure. Under Section 73 of the 1999 Act, only those who have had an appeal finally determined can have a further application certified. But not everyone appeals, and some of the most abusive cases involve those who claim asylum, then abscond, only to resurface months later when they can reapply to remain and start the whole process all over again. They may even take a quick trip abroad deliberately to achieve the same result. I hope that the Committee will agree that that is unfair. In effect, it is using the system. If one looks hard enough, one can find loopholes to exploit in every system. We want to block this one but without unfairness to the asylum seeker. The system is designed to ensure that the asylum seeker has the opportunity to make the whole of his case.

Under our proposals applicants may be advised on application or soon after that they must state all the reasons for wishing to stay in the United Kingdom. They will be warned of the consequences if they do not comply. By extending the power to give a warning to all applicants we catch those who do not mention asylum or human rights initially, so we can deal appropriately with a tactical claim later. If the application is refused with a right of appeal, the disclosure requirement will be repeated when appeal forms are sent out. We think that it is reasonable, fair and just that, if the opportunity to apply and to appeal against any refusal has been offered, and the applicant chooses not to take it, although warnings have been given, any later application can be certified under Clause 84. That mirrors the effect of Section 76(5) of the 1999 Act in asylum cases but extends it to other types of cases dealt with in this country.

We are also bringing into the system those who are liable to an adverse decision, such as deportation or curtailment of leave, without having made an application. Issue of the one-stop warning will become discretionary so that the system better targets those cases where it is likely to be of benefit. We do not intend to impose the requirement, for example, on every short-term visitor to our shores.

3.30 p.m.

Lord Avebury

As such enormous emphasis is placed on the one-stop notice, can the Minister assure the Committee that it will be distributed in languages that appellants will understand?

Lord Falconer of Thoroton

To be effective the notice must be one that the applicant understands. Perhaps I can check that before I give the noble Lord the assurance that he seeks.

At the same time we have simplified how one-stop works in practice. That has been welcomed, for example, by the Refugee Legal Centre whose briefing speaks of our, simpler and more effective scheme". Opposition Amendments Nos. 200 to 204, which I suspect are probing amendments, would take away the element which makes one-stop work; that is, the fact that a late application intended to delay by virtue of an appeal no longer has that effect. Having to put the case before an adjudicator would almost inevitably mean that the removal arrangements would have to be cancelled. Every single person whose case is certified will have had the chance to make out an asylum or human rights case to the Home Office in the proper manner. And if they have done so and it has been refused they will have had the chance to appeal. They may apply for judicial review of any one-stop certificate issued in their case and of the decision to refuse the claim, so they are not without recourse. The general principle that the certificate should deny access to the adjudicator has been with us for nearly two years now, but no-one who has been certified can say that they were not required—often twice over—to make their claim at the appropriate time.

The Joint Committee on Human Rights, to which the noble Lord, Lord Goodhart, referred, reminded the Committee (paragraph 112(n) of their report) of the need to ensure that people are not removed before they have had an effective opportunity to ask for a court's help in enforcing convention rights. The one-stop warning given under Clause 103 (which is equivalent to notice now given under Section 74 or 75 of the 1999 Act) actually requires the person to put forward any convention issues that they may have, so that any refusal can go through the full appeal process and not just through the higher courts. It is up to claimants to take that effective opportunity when it is offered by complying with the requirement. But if they do not do so, and their case is certified, they will still have access to judicial review.

Opposition Amendment No. 205 has the entirely laudable intention of ensuring that nobody's claim is certified unless they have had legal advice up to the standard set by the Immigration Services Commissioner. This is a complex consideration. Last week, late at night, we had a debate on this issue. Word would quickly spread that if one avoided seeing any legal adviser, or at least successfully claimed that no one had provided advice, one could continue to submit late claims and acquire new appeals forever. Unless the Home Office has received a letter on headed paper or an interviewer has seen an applicant in the presence of his representative, we have no way of judging whether an applicant has been given good advice or not, and disputes would lead to more opportunities for judicial review.

The Refugee Legal Centre's briefing does not object to the denial of an appeal right when the matter is raised late, but it does object to the possibility that claimants will have been let down by unscrupulous or negligent representatives and thus have neglected to put forward a human rights or asylum claim.

Yet we cannot force people to take advice and we cannot force people to take good advice. Those who intend all along to take the utmost advantage of our system will actively seek out the unscrupulous adviser who for obvious reasons is not registered. We feel that the best solution is to encourage claimants to take the right kind of legal advice at an early stage, and asylum-seekers going through the induction centres will be given guidance, as they will be given guidance on the one-stop process. For others, there are many reliable sources of information. The Citizens Advice Bureaux, for example, will point them in the right direction. Those systems are in place.

I turn to the point raised by the noble Lord, Lord Goodhart. Clause 84(2) applies where the matter was raised at the earlier appeal or where it could have been included in the reply to the one-stop notice that the person will be given before an appeal. If new grounds are raised, they will be considered at the appeal. However, not everyone exercises a right of appeal, so people will be told to raise everything early and they will lose the right to raise it again at the removal stage.

On the point raised by the noble Lord, Lord Avebury, the notices will be in English, but interpreters will be available at the induction centres. The interpreters will be in a position to translate them.

Lord Goodhart

In reply to my point on Clause 84(2) the Minister said that, effectively, if there were a new point it could be brought. There is nothing here that repeats the reference in Section 73 of the 1999 Act to reasonable grounds for not raising a matter earlier. Does he suggest that it is implicit, for example, in Clause 84(2)(b)? If not, how does he reach the conclusion that, if there were reasonable grounds for not raising a matter on the first occasion, it could he raised at the later date under Clause 84(2)?

Lord Falconer of Thoroton

Clause 84(2) refers to, a ground or matter which the person…should have included in a statement which he was required to make under section 103". If there were good grounds for not making it, that would be a highly relevant factor in whether the Secretary of State could certify under Clause 84.

Those who make a late claim will not all he certified—only those who seek to delay a removal when there is no legitimate purpose to the claim. Those who—ill advised, well advised or not advised at all—could not have raised a legitimate claim earlier when required will not be so certified. Those who can convince us that their representative was negligent or did wrong by them may well have a legitimate purpose in making the subsequent claim. So if there is a perfectly reasonable ground why they did not raise it before, that will be highly significant in determining whether or not the Secretary of State could certify.

I have gone at some length into the justification for Clause 84. As noble Lords have seen, it is an important and significant clause. It is founded on the 1999 Act and seeks to strike a reasonable and sensible balance between allowing asylum seekers the opportunity to put their point of view fully and fairly and ensuring that the system is not exploited to create delay. I hope that noble Lords will bear those remarks in mind in considering what to do about their amendments.

Baroness Anelay of St Johns

I thank the noble and learned Lord for that response. I thank Members of the Committee who, with the exception of the Minister, have supported my Amendments Nos. 200 to 205. I appreciate that the noble Lord, Lord Goodhart, and I have a different approach to the principle behind the clause. I certainly respect his stance, but he will appreciate that I cannot support him on that. We support the Government's principle underlying it. Our difficulty is with the practice—in the way that the clause is to be implemented.

I am grateful to the noble and learned Lord for taking the time and care that he has today. Perhaps I may start with the last amendment. He has completely satisfied me on Amendment No. 205.

He has substantially satisfied me on Amendments Nos. 202 to 204. Throughout we have said that we were worried about the principle of ensuring that someone avoids ever having a judicial hearing on these matters. The Minister has addressed himself to the practical issues that would ensue from the amendment that we seek to make. I listened carefully to what he said. I shall read it very carefully over the Summer Recess. I shall not pursue matters now. It may well be that he has satisfied me, but I need to look carefully at the principle so clearly enunciated by the noble Lord, Lord Clinton-Davis; that is, that executive officers are not a substitute for judicial decisions. Since I start from that as a matter of principle, I must consider carefully whether I need to pursue the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 201 to 203 not moved.]

Lord Filkin moved Amendments Nos. 203A and 203B: Page 45, line 40, leave out "or matter Page 46, line 4, leave out "or matter

On Question, amendments agreed to.

[Amendment No. 204 not moved.]

Lord Filkin moved Amendment No. 204A: Page 46, line 6, leave out "or matter

On Question, amendment agreed to.

[Amendment No. 205 not moved.]

Clause 84, as amended, agreed to.

3.45 p.m.

Clause 85 [National security, &c.]:

Lord Avebury moved Amendment No. 205A: Page 46, line 25, leave out paragraphs (b) and (c).

The noble Lord said: The wording of subsection (2) of Clause 85, taken together with Clause 86, is a variation on Section 62(4) of the 1999 Act. Section 61 of the Immigration and Asylum Act 1999 states that a person may appeal against a decision to vary, or to refuse to vary, any leave to enter or remain in the United Kingdom when, as a result of that decision, he may be required to leave the UK. But that right could be annulled if the Secretary of State certified that the person's departure from the UK would be, conducive to the public good as being in the interests of national security, the relations between the United Kingdom and any other country or for other reasons of a political nature".

Section 64(1) of the 1999 Act prevents appeals against a decision to make a deportation order if the ground of the deportation order is that deportation is conducive to the public good as being in the interests of those matters that I have already mentioned.

The main difference between this clause and the section in the 1999 Act is that the range of immigration decisions listed in Clause 70(1) of the Bill is far wider, including, in particular, the revocation of indefinite leave to remain. The requirement that the person's departure or deportation from the United Kingdom must be "conducive to the public good" has been moved into its own separate clause—Clause 86. With the enhanced powers that the Secretary of State is given under the clause he could theoretically get rid of someone when there is no public good involved in so doing. That means that we will be subject to pressures from dictators in places such as Saudi Arabia, Turkey, Iran or even democracies such as India, to kick out their dissidents. We would have less of an argument not to comply with their wishes if the public good condition is removed to the later clause—Clause 86.

Perhaps I may give an example. A few years ago a friend of mine, Sheikh Ali Salman, fled to this country from Bahrain. A senior Minister came from Bahrain in order to bring pressure to bear on the Foreign Office to try to get us to refuse him admission to this country, to grant him asylum or indefinite leave to remain. Probably there are many other cases that exist, of which we have no knowledge because, in the nature of things, they do not come into the public domain. The clause issues an open invitation to autocracies to expel their troublemakers, even if they have already been given indefinite leave to remain.

Looking ahead to the provisions of Clause 86, the Secretary of State has an additional and separate power in relation to appeals against a decision under Clause 70(2)(a) or (b) to refuse leave to enter or to refuse an entry certificate where the refusal is wholly or partly on the ground that the person's removal or exclusion is conducive to the public good. Whether or not a certificate is issued under Clauses 85 or 86, if the person has an appeal pending, it automatically lapses. This is also—and I should like an explanation from the Minister on it—a tightening of the screw beyond the 1999 Act. The power of the Secretary of State to issue a certificate under Sections 62 and 64 of the Act stopped a person from appealing in the future, but it did not halt appeals that were in progress as the provisions in the Bill seek.

Can the Minister tell the Committee how many certificates have been issued since 2nd October 2000 under Clauses 62 and 64? In each case how many have rested on, the relations between the United Kingdom and another country", and, for other reasons of a political nature", respectively? What were the countries to which these certificates related? Will she give examples of how our relations with those countries were said to have been benefited as a result of issuing those certificates? If we are told that the Minister cannot give any information about certificates because, in the nature of these cases, the circumstances have to be confidential, it then becomes clear that we are being asked to give the Government a blank cheque to get rid of people for what may be ignoble purposes to do with our supposed national interests.

I am not saying that the present Government would try to use those powers in ways that we on these Benches would disapprove, but I would suggest to your Lordships that it is extraordinarily dangerous to give these sweeping powers to any government without a better idea of how they are to be used and with no limit on the catch-all phrases that are used in the Bill. I suggest that it would be an abrogation of Parliament's responsibility to leave these matters entirely to SIAC, knowing that whether they keep Ministers on a strict rein or give them a wide margin of appreciation—as the European Court of Human Rights would do in matters of security—Parliament and the public will never know. I hope that the Government will take these paragraphs away, think about them over the Summer Recess, and come back with a more tightly drafted form of words. I beg to move.

Earl Russell

The amendment bears an uncanny resemblance to an issue that came before the House in May 1628. The House was debating the question of imprisonment without cause shown. The King asked the House to write into law a provision that he could imprison without cause shown where it was for the common good.

The House understood that there were certain occasions when national security required imprisonment before due process had been gone through. Guy Fawkes may serve for a classic example. What it was not prepared to do was to write into law that the King could have those powers in law. Everyone knows that decisions taken for reasons of a political kind are like sin: they will always be with us. A prohibition of sin will never be finally effective. But a legal permission of sin is an altogether different matter.

The amendment reminds me of King Henry VIII's attempt to reword the 10th commandment to read, "Thou shall not covet another man's wife without due recompense". Archbishop Cranmer told him that he could not do that.

Lord Dholakia

Perhaps I may put two questions to the Minister with which she may deal in replying to the debate. There are two causes of serious concern in Clause 85(3). The first is the words: in the interests of the relationship between the United Kingdom and another country". Can the Minister explain precisely what is meant by that? Secondly, the following paragraph states: for another reason of a political kind". No definition whatever is given of what that means.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)

Perhaps I may speak first to Amendments Nos. 220 and 207. They would bring advocacy before the Special Immigration Appeals Commission within the scope of the Community Legal Service. That would mean that legal aid would be available for representation before SIAC. I mention SIAC first because I want to reassure the noble Lord, Lord Avebury, and the noble Earl, Lord Russell, that there is no similarity to the position in 1628 nor any blank cheque, because SIAC will play a role in relation to the clause. I understand that relatively few cases have come before SIAC—a total of 24 since it was established in 1998. As the Committee will be aware, SIAC was set up specifically to deal with cases involving national security matters.

The Community Legal Service was established by the Access to Justice Act 1999. Schedule 2 to that Act sets out those services for which public funding, formerly legal aid, may not be funded as part of the Community Legal Service. Under paragraph 2 of that schedule, advocacy in any proceedings is one of those services, subject to the exceptions also listed in that paragraph. Advocacy before most tribunals, including SIAC, is currently outside the scope of the Community Legal Service scheme. However, proceedings before the Immigration Appeal Tribunal and before immigration adjudicators are within the scope of the scheme. That means that individuals appearing there can receive public funding for representation if they satisfy the means and merits tests.

The fact that a service is outside the scope of the Community Legal Service scheme does not mean that public funding is never available for it. A power under Section 6(8)(b) of the Access to Justice Act 1999 allows the Lord Chancellor to authorise the Legal Service Commission to grant funding for services that are otherwise outside the scope of the scheme. That is known as "exceptional funding", and cases must satisfy the means and merits tests for funding and the particular criteria for exceptional funding, such as "overwhelming importance to the applicant" or that it is of "significant wider public interest".

My noble and learned friend the Lord Chancellor has exercised that power in relation to several individuals appearing before SIAC, most recently in March this year. The nature of proceedings before SIAC is such that financially eligible applicants will almost invariably satisfy the exceptional funding criteria. So exceptional funding is currently available to the relatively few applicants before SIAC who need it, on a case-by-case basis.

However, Amendment No. 220 will bring SIAC within the scope of normal public funding, so that applications can be dealt with directly by the Legal Services Commission without requiring a ministerial decision in each case. That will make the application process faster and more transparent. I should make clear that the amendments apply only to SIAC and will have no effect on the availability of funding for other tribunals.

Amendment No. 207, tabled by the Opposition, contains some drafting errors. Given that Amendment No. 220, tabled by the Government, will have the intended effect, I hope that Amendment No. 207 will not be pressed. I see that the noble Baroness, Lady Anelay, is nodding; I am most grateful to her.

As I said, I outlined that position first because Clause 85 as a whole removes rights of appeal under Clause 70(1) in cases where the Secretary of State has decided to exclude or remove a person from the United Kingdom on the grounds that Members of the Committee have described, namely: in the interests of national security; in the interests of the relationship between the United Kingdom and another country; or because it is desirable for another reason of a political kind.

That does not mean that a person's right of appeal is taken away. The Special Immigration Appeals Commission Act 1997 simply moves most of those appeals to the Special Immigration Appeals Commission, which was set up specifically to deal with cases where sensitive intelligence material is to be brought as evidence. Clause 85 as drafted does not represent a change in that policy.

Taken together, the amendments would remove the grounds in paragraphs (b) and (c), leaving national security as the only ground on which an appeal cannot be heard before an adjudicator, as opposed to SIAC. That would cause serious difficulties. For example, if someone had committed crimes in or attempted to overthrow the government of another country or damaged their interests, severe damage could be done to relations with that country if the United Kingdom allowed that person entry. That could result in the loss of British jobs through cancellation of contracts, or perhaps withdrawal of co-operation in other areas—intelligence sharing being one—which would not be in the United Kingdom's national interest.

Earl Russell

Is the Minister aware that all of the arguments that she is advancing go against the hospitality that we gave to members of the African National Congress—of which I remain deeply proud?

Baroness Scotland of Asthal

I respectfully disagree, because judgments must be made about requests received—about the quality and nature of the evidence produced by way of persuasion. I can certainly reassure the noble Earl that that judgment will continue to be exercised by Ministers when deciding whether such matters should properly be taken into account.

Often, the information on which the decision not to allow a particular person entry under this category will be highly sensitive. The other country may have provided us with intelligence material, or the UK intelligence services may have their own relevant information, which could compromise sources if revealed. By removing paragraph (b) from the list of cases to be heard by SIAC rather than by the adjudicator, all the information on which such a decision was based would have to be put before the adjudicator in a public forum. If that were not possible, the Home Secretary would have to withdraw his decision and permit the person to enter the United Kingdom. That could have a significant effect on our relationship with the country concerned. It is not that the information will not be capable of being seen; we are simply talking about the fora in which it will be discussed and debated. SIAC is an appropriate forum for disclosure. The information can then be examined and appropriate decisions made.

The noble Lord, Lord Dholakia, asked what was meant by the phrase, another reason of a political kind". It could include questions relating to public order, public morality and, possibly, any future threat to United Kingdom citizens or interests. Previous Home Secretaries have excluded, for example, Holocaust deniers, officers of the Ku Klux Klan and several religious cultists. Although many such cases will be dealt with on the basis of evidence that is in the public domain, in some cases—particularly those relating to possible future risk—the decision could be based on sensitive intelligence material that it would be necessary to hear in SIAC. Not including, another reason of a political kind as one of the criteria that directed an appeal to SIAC, could threaten the life of potential witnesses, if they had to give their evidence to an adjudicator, rather than to SIAC. The criterion exists to give a necessary route to the appropriate forum. Without it, the Home Secretary would have no forum in which to expose sensitive material.

4 p.m.

Lord Avebury

It is up to the Government to argue the case and not up to us to divine how the powers might have been used in the past, had they existed. Can the Minister point to cases in which sensitive material had to be revealed to an adjudicator because SIAC did not exist? Are there cases in which people have been admitted to the country who would have been excluded, if we had been able to deal with them through SIAC?

Baroness Scotland of Asthal

In asking that question, the noble Lord has raised a sensitive issue. The purpose of creating SIAC is to provide an appropriate conduit through which sensitive material can be disclosed and, if necessary, reviewed. With SIAC, the validity of the opposition to someone's admission or exclusion can be examined critically and decisions about the case made. About 13 matters have been certified since October 2000. I cannot give the noble Lord specific details of those 13 cases.

Clause 85 does not take away the right of appeal. The amendment in paragraph 6(f) of Schedule 7 provides for any appeal relating to any immigration decision for which there is a certificate under Clause 85 to be heard by SIAC. I say that for the purposes of clarity.

We believe that the process set out is the most appropriate one. It relieves adjudicators of the burden of hearing in public information that may, for the reasons that I have given, be incredibly sensitive and should be heard with that sensitivity in mind.

Earl Russell

I may have misled the Minister by speaking with excessive brevity in my previous intervention: I had no intention of offering any criticism of the SIAC route. I accepted that when the Anti-terrorism, Crime and Security Bill went through. My noble friend Lord Lester of Herne Hill, who was involved in its genesis, has spent a great deal of time explaining it to me. It is, in fact, the procedure that they should have adopted in this House in 1628, had they had the trust to do so, which they did not.

I am concerned that we should leave, written in the law, words that allow us to imprison people for, another reason of a political kind". I accept reasons of national security. Anyone who does not deserves the reply that Carlyle gave to the old lady who said, "I accept the universe". He said, "Gad, ma'am, you'd better". However, national security is a matter that is reducible to evidence, even if that evidence is heard in camera. The criterion, another reason of a political kind is not reducible to evidence. To write into the law that we may imprison people for, another reason of a political kind". is to include a phrase so general in its operation that it must call the whole concept of the rule of law into doubt. Cannot the Minister find a slightly less provocative way of wording it?

Baroness Scotland of Asthal

I hear what the noble Earl says, but that is the most appropriate way of describing the criterion that can be found at present. I have given several examples that would fall within that category. In the past, there seems to have been agreement that, for example, Holocaust deniers or members of the Ku Klux Klan, were the sort of people who should not be allowed to come in, if there was specific evidence about them. We accept that the phrase is generic, but I can reassure noble Lords that SIAC will be judicious about how it views its interpretation.

I also agree that there is nothing new about the clauses. They have been in the Immigration Act since 1971, including the reference to reasons of a political nature. SIAC will examine evidence of whether deportation is justified on that ground.

Lord Avebury

In the past, interpretation of the phrase, another reason of a political kind has been done in public. The examples that the Minister has just given—concerning the Ku Klux Klan and the Holocaust deniers—relate to legitimate questions of public comment. I can remember many cases in which the Home Office sought to prevent people from entering the country for the reasons that we are discussing, thus provoking major rows.

Years ago, there was a case relating to the entry of someone connected to an extremist religion—I forget whether it was the scientologists or the Moonies. Sir John Foster carried out an inquiry into whether it was legitimate to exclude such people from the United Kingdom. In future, the Moonies—or whoever it may be—will be excluded under this clause, and there will be no public discussion of the merits of the decision. The matter will be dealt with by SIAC behind closed doors.

Baroness Scotland of Asthal

The noble Lord says, "behind closed doors", but the point is that there will be a proper hearing. I hope that the noble Lord is not suggesting that SIAC will, in some way, undertake the process improperly and injudiciously. The point of having SIAC is to have a robust system on which we can all rely to make sound and proper judgments. The decisions will be made by appropriate judicial officers with proper training and expertise.

Earl Russell

The complaint is that the criterion, another reason of a political kind cannot properly be judged.

Lord Mayhew of Twysden

I want to make a suggestion. I shall not invite the Minister to draft amendments while on her feet in public, but I wonder whether another form of words—such as "expedient for another reason in the public interest"—might meet the concerns raised by the noble Earl, Lord Russell. If that were adopted, we would, at least, know that such a decision would not be taken without reference to the Attorney-General, who is the guardian of the public interest. That would be the probability and ought to be the rule. Will the Minister consider that? It would be less offensive to have such a phrase in the Bill than the existing wording, for the reasons that the noble Earl suggested.

Lord Judd

As someone who supports and understands the Government in their intention, I ask them to consider whether more precise wording could cover this point. The noble and learned Lord's observations are extremely helpful in that respect.

I am worried not only by the noble Earl's suggestion that the provision could bring the rule of law into disrepute, but also that we are moving into an age where it is too easy to think that political activity of itself is sometimes questionable, uncomfortable and unacceptable. Anything that inadvertently aids and abets such a reactionary and dangerous view is unfortunate. I therefore hope that my noble friend will take very seriously the noble and learned Lord's point and at least undertake to reconsider the issue before Report stage to sec whether better wording could be introduced.

Baroness Scotland of Asthal

I am happy to look at the wording more carefully as my noble friend suggests, but I must reiterate that "of a political kind", or "of a political nature", has been in the legislation since 1971. It does not lie outside what our courts have been used to dealing with. I also emphasise that SIAC will hear evidence in private only if it is warranted. Most of the evidence is likely to be heard in public.

We will see whether something more solicitous can be contrived and we will look at the suggestion made in relation to the wording. But because the term "political kind" has been in usage for considerable time, we may have to return to the issue.

Earl Russell

I thank the noble and learned Lord and the noble Baroness for those responses.

Lord Avebury

We are not worried about the phrase, "another reason of a political kind", which as the noble Baroness explained, has been in use since 1971, but about the difference in the procedure—which has always existed—whereby such cases could be explored in public. The noble Baroness gave two examples and I gave another of highly political reasons that led governments to exclude people from the United Kingdom but were nevertheless discussed in the media.

On the noble Baroness's figures, 13 certificates have been issued since October 2000. I do not think that any of those cases have been in the media, but I may be wrong. She said that it is always open to SIAC to hold hearings in public if it does not believe that the political matters before it are of such a sensitive nature that they have to be held in camera. So I hope that some form of words can be devised as the noble Lord, Lord Judd, helpfully suggested, that will distinguish between the two categories of case: those which can be dealt with only through SIAC because sensitive security issues are involved, and those of a purely political nature, such as the Reverend Moon or the Ku Klux Klan, which can properly be dealt with by adjudicators.

I thank the noble Baroness for what she said about the extension of Community Legal Service aid. That is a sensible concession, bearing in mind that many of the people who would be eligible under the new section being inserted by the Government will already have had their cases approved through the Community Legal Service at prior stages. If they had to go through the Access to Justice Act 1999, which the noble Baroness said had been used in such cases, it would mean switching from one form of assistance to another, which might create unnecessary bureaucracy. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 206 and 207 not moved.]

Clauses 85 and 86 agreed to.

4.15 p.m.

Lord Goodhart moved Amendment No. 207ZA: After Clause 86, insert the following new clause—

"DEFERMENT OF POWER OF REMOVAL

(1) The power to remove a person from the United Kingdom under the Immigration and Asylum Act 1999 shall not be exercised while there is pending applications for judicial review of any decision to which subsection (2) applies, or an application for leave to apply for judicial review of such a decision, or while the time for making such an application has not expired.

(2) This subsection applies to—

1. (a) an immigration decision to which subsection (2) of section 76 applies;
2. (b) a decision by the Secretary of State to certify that in his opinion a claim under subsection (2)(a) of section 81 is clearly unfounded;
3. (c) a decision by the Secretary of State or an immigration officer to grant a certification under sections 84 to 86."

The noble Lord said: The amendment is based on the views expressed in paragraphs 93 to 103 of the report on the Bill by the Joint Committee on Human Rights. The Bill considerably increases the number of circumstances in which immigration and asylum appeals can be banned from going to an adjudicator or thereafter to a tribunal. The original decision will become subject to judicial review, but the Bill contains no protection against the removal from the United Kingdom of the subject of the decision objected to while the judicial review proceedings are continuing.

The Joint Committee concluded that the removal of a person while judicial review was pending could in some circumstances result in a violation of his rights under Article 13 of the European Convention on Human Rights; that is, the right to an effective remedy before a national authority for breach of other convention rights. Article 13 is not one of the convention rights under the Human Rights Act, but it could be the basis for an appeal to the European Court of Human Rights in Strasbourg.

The defeat of the human rights of the person removed could arise where an asylum seeker was returned to the country of origin and imprisoned there; in that case the purpose of asylum is defeated as it becomes impossible. The Joint Committee identified such problems under several clauses; the first in numerical order is Clause 76, where immigration decisions taken on certain specified grounds are excluded from the appeal structure. Those grounds include cases where a person is seeking to remain in the United Kingdom for longer than permitted, or where he is remaining for a purpose other than that for which he is permitted under the immigration rules.

Clause 81 bans an appeal on human rights grounds against an order for removal to an allegedly safe third country if the Home Secretary has certified that, in his Opinion, the claim on human rights grounds is unfounded. We have just been debating Clause 84. The amendment refers to Clauses 84 to 86, although where a certificate is issued under Clause 85, as we have just heard, there is the possibility of an appeal to SIAC, which in the view of the Joint Committee on Human Rights would probably suffice for that purpose.

Nothing I say casts any question on the point raised by my noble friend Lord Avebury about the possible absence of due publicity on SIAC's proceedings. This is simply looking at the position of someone who has a right of appeal to SIAC and the question of whether that right of appeal, whether or not it is publicised, meets the required criteria for the judicial process. There are problems with Clauses 84 and 86 and there is no remedy except judicial review under either clause. In each case, as reported by the Joint Committee, there is a risk that a legitimate challenge to a court in the United Kingdom could be aborted by the removal from the United Kingdom of the person against whom the order is made during the judicial review proceedings.

The reports of the Joint Committee deserve great respect. There is a risk that in some cases the removal of an immigrant or asylum seeker while judicial review is pending could prejudice human rights. There may be only a few cases hut, frankly, a few is too many. I believe that the Government should reconsider the issue. I beg to move.

Lord Kingsland

The noble Lord, Lord Goodhart, has explained that the Liberal Democrat amendment would prohibit the removal of persons who have applied for judicial review, particularly those who are not accorded the normal appeal rights by virtue of Clause 76(2); those whose asylum applications are certified as clearly unfounded; and those whose applications are certified under Clause 84 and Clauses 85 and 86.

It is my understanding that it is already the policy of the Home Office to defer removal in order to allow an applicant's legal representatives to seek permission to apply for judicial review and subsequently, while the case is under consideration by the courts.

The Minister may be aware of the terms of paragraph 7 of Chapter 13 of the Asylum Policy Instructions and Immigration and Nationality Directorate internal guidance document which has been published on the IND's website. Paragraph 7.2 of the published instructions states: It is Home Office policy to defer removal, firstly to allow the applicant's solicitor to seek permission to apply for judicial review and thereafter while the case is under challenge in the courts. The solicitor will be given a limited time in which to seek permission to apply". Is the Minister, therefore, able to confirm that the Government already follow, and will continue to follow as a matter of policy, the suggestion made by the noble Lord, Lord Dholakia, in his amendment?

I have one further question regarding the final sentence of the paragraph I have quoted, which states that a "limited time" is given to legal representatives to seek permission to apply for judicial review. As Members of the Committee will be aware, the general rule for judicial review is that it must be sought, promptly and in any event within three months". Can the Minister confirm that this is indeed the criterion that is applied when granting a deferment of removal? If so, can the Committee be told how that expression is interpreted by the Home Office?

Lord Bassam of Brighton

We greatly respect the reports produced by the Joint Committee on Human Rights and the matter has been carefully considered by Ministers in reaching the position we have adopted. We ought to put the debate in the context of the White Paper, which sets out exactly what a judicial review is and why sometimes the "abuse" of that process needs to be tackled by this legislation.

Judicial review, as we all know, is not an appeal as such: it is a way by which the decision of any public authority can be challenged in the administrative court. Applications for judicial review in immigration and asylum cases amount to more than 60 per cent of all applications for permission made to the court.

That would be fine if the grounds for application in the majority of cases warranted consideration, but it is the case that more than 80 per cent of all applications for judicial review in immigration cases founder at the permission stage. In this legislation, we are taking steps to deal with the large number of judicial review applications with the introduction of the new statutory review. The statutory review will provide for a challenge against refusal of leave to appeal to the Immigration Appeal Tribunal by way of an application to a High Court judge on a point of law.

We are also introducing tighter funding control on such applications. We hope that these new arrangements will have an important deterrent effect on abusive applications being lodged at the refusal of permission to appeal to the tribunal stage solely to prevent removal.

Last minute and abusive applications for judicial review have a debilitating effect on the process of asylum applications as they prevent the swift removal from this country of those who have no basis to remain here. Under current arrangements between the IND and the High Court, if a judicial review is threatened, removal is delayed for between three to five days to enable the application to be lodged. If an application is lodged, the removal will be deferred. At present, it takes seven to eight weeks for the permission application to be considered.

Members of the Committee discussed the arrangements earlier and know the position. Therefore, when an application for judicial review is made, in most cases the applicant is released from detention. We ask: what kind of signal does that send out? The categories for which the amendment seeks to provide a suspense of judicial review opportunity are those which, if they had the right to appeal to an adjudicator, simply could not succeed. They include those to whom the Dublin convention applies; those who have or who have had the opportunity to appeal; and those who are unwelcome here on the grounds of public good, including, as we discussed earlier, national security.

The amendment also seeks to prevent the removal of those who are within the time limit within which they might make an application for judicial review. The time limit under the civil procedure rules to lodge a judicial review is lengthy—up to three months—but the application must in any event be made promptly. Therefore, it is unclear whether the intention is that removal should be deferred for three months or until any such application would no longer be prompt. To stay the removal of all failed immigration and asylum applicants for three months while they consider whether to bring an application, all the while on public support or detained at public expense, is in our submission absurd. And I believe that the public would agree with that proposition.

I understand the thinking behind the amendment and why the noble Lord, Lord Goodhart, and his colleagues have been kind enough to table it. However, we do not believe that it advances the cause of asylum seekers. In fact, in some respects it may well set it back because it seems to frustrate the process. I hope that the noble Lord will not seek to press his amendment today or at a later stage.

Lord Goodhart

I was unhappy with the Minister's reply because part of it was well beyond the purposes of the amendment. We were not looking at the procedure for applying for judicial review: we were saying merely that while that procedure is continuing—either at the application stage; when leave has been granted; or when the time for application has not yet expired—there should be no removal from the United Kingdom.

If the Government chose to speed up the time limit within which an application for judicial review could be made in asylum cases, that would be another matter and we would have to consider that on its merits. However, while the law allows a three-month period, that should not be foreshortened by removing someone so that he cannot consult his advisers and is therefore effectively unable to bring judicial review proceedings or make an application.

Certainly once an application has been made and is pending or once leave has been granted, it is appropriate beyond doubt that applicants for judicial review should be entitled to remain in the United Kingdom so that they can be consulted by their legal representatives and give instructions that may well be needed. I understand that that is the position of the Government, but there is no obligation to observe the rule. It would be appropriate to put it on to the face of the Bill.

The Government should accept the amendment so that where either an application for leave is pending or leave has been granted and a hearing is pending—

Lord Bassam of Brighton

I think that the noble Lord may be operating under a misapprehension; perhaps I did not make the position clear. It is our practice not to remove anyone while judicial review is pending. If that helps the noble Lord, then perhaps he will feel more comfortable with the present position.

Lord Goodhart

I do not think that the noble Lord could have heard what I said. I accept that that is de facto the position, but it would be desirable—since it is so obviously correct—to put it on to the face of the Bill.

If the Government feel that it would be appropriate to shorten the time within which judicial review could be applied for in cases of this kind, then they should bring forward proposals to do just that. Such proposals would have to be considered on their merits as regards the time-scale. At the moment, however, where a longer period is allowed, it is difficult to justify removing someone while the period has not yet elapsed.

I remain unhappy with the Government's response. We may wish to revisit the matter, but for today I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Clauses 87 and 88 agreed to.

Schedule 5 agreed to.

Clause 89 [Appeal to Tribunal]:

Lord Joffe moved Amendment No. 207A: Page 47, line 25, leave out "on a point of law

The noble Lord said: In moving Amendment No. 207A I wish to speak also to Amendment No. 207B. I am grateful to those noble Lords who have added their names to the amendments. I should also like to thank ILPA and the various immigration NGOs and associations which have provided such detailed and incisive briefings.

The amendments are based on my experience as a human rights lawyer in South Africa, which will set the context for my approach. I have listened carefully to many of the debates in Committee and to the approach taken and responses of Ministers, in particular the silken eloquence and reassuring manner of the noble Lord, Lord Filkin, as he defends what I believe to be the indefensible.

I could not help but be struck by certain parallels between this Bill and legislation in apartheid South Africa. That legislation initially deprived selected groups of some of their human rights and, subsequently, of most of those rights. In the Bill before the Committee, a group of people—asylum seekers—have been singled out and are to have many of the rights enjoyed by everyone else stripped out or diminished. There is a thread running throughout the Bill that seeks to remove the rights of asylum seekers.

The right to judicial review is to be removed. Unrealistic time-scales are to be imposed for lodging statutory appeals. There are to be new powers of search and entry without a warrant. Some appellants are to be shipped out of the country to prosecute their appeals. Children are to be banished from mainstream schools and provisions on bail applications are to be withdrawn. These are just a part of the slippery slope on which the Government have embarked.

When within government the mindset develops that every threat, whether real or perceived, can be met only by removing the legal rights and protections of the courts from selected groups, then the very fabric of the rule of law is in danger. There is a grave risk that the fine reputation enjoyed by this land of being a bastion of liberty and justice for all will be irreparably damaged.

I turn specifically to Amendment No. 207A, the purpose of which is to preserve the jurisdiction of the Immigration Appeal Tribunal over matters of fact. The current position is that most of those whose appeal is refused by an adjudicator can apply for leave to appeal to the Immigration Appeal Tribunal. An application can be made to appeal on the ground that the adjudicator has made an error of law or of fact. By means of Clause 89(1), the Government intend to remove the right to appeal on an error of fact. That is to be done despite the fact that the tribunal's current power to grant leave to appeal, whether on a question of fact or of law, is not wide. It is limited to cases which have a real prospect of success or where some other compelling reason is put forward to justify why the appeal should be heard.

The Government have offered no persuasive reasons for removing the specialist tribunal's ability to consider issues of fact as well as of law on appeal. It would be helpful if, in his response, the Minister could outline the reasons for the limitation and give details of any statistics which support those reasons.

Under the current practice of the tribunal, only a very limited number of cases engage its jurisdiction on matters of fact, but such cases raise serious issues. That can be illustrated by a recent example. A Turkish Kurd claimed asylum on account of his political activities in the Kurdish area of Turkey. The Home Office rejected the claim, the adjudicator finding that he had a well-founded fear of persecution in the Kurdish area, but that he could live safely in Istanbul. The tribunal granted leave to appeal on the basis that documentary evidence showed that the political Kurds cannot live safely in Istanbul. At the hearing before the tribunal, the members considered evidence about Istanbul. There was no point of law, only discussion about factual evidence. The tribunal disagreed with the adjudicator and allowed the appeal. The appellant was subsequently granted asylum.

Lord Clinton-Davis

Would the noble Lord indicate when that appeal was heard?

Lord Joffe

I do not have to hand the exact date, but I can confirm that the case was heard recently.

This case and others like it turned on matters of fact. If Clause 89(1) becomes law, appellants whose appeals have been wrongly refused because the adjudicator is incorrect about the facts will be denied the right to appeal. Without further ado they will be returned to the countries from which they fled and in which, at best, they will live in fear of persecution, but more likely they will be imprisoned, tortured or even murdered.

Evidence has made it manifestly clear that asylum seekers like Kurdish Turks, who are entitled to asylum, will be denied it under the proposed legislation. I should like to ask the Minister how the Government can possibly justify such an outcome. The amendment would ensure that the tribunal can continue to grant leave to appeal on the ground that the adjudicator has made an error of fact.

I turn now to Amendment No. 207B. First, however, I shall respond more fully to the question put to me by the noble Lord, Lord Clinton-Davies. The appeal for the Turkish Kurd asylum seeker was lodged around two months ago.

Lord Clinton-Davis

I am most grateful to the noble Lord for giving way. This matter is germane to the question I posed earlier when the noble Lord said that there were no such cases, as he understood it.

Lord Joffe

This case is one of a number in respect of which I have been provided with details.

I turn now to Amendment No. 207B, which seeks to retain the right to apply for a judicial review of a decision to refuse leave to appeal to the Immigration Appeal Tribunal. Clause 89 would replace this right with a paper statutory review, with no prospect of any further renewal or appeal. The current position is that in cases where an appeal is refused by an adjudicator the appellant can apply for leave to appeal to the Immigration Appeal Tribunal. If the tribunal refuses to grant leave, the appellant can apply to the High Court for judicial review on the ground that the tribunal has made an error of law.

There is nothing unique to immigration or asylum about the right to apply for judicial review. The right to apply for such a review where an administrative body or a tribunal makes a decision that is wrong in law and there is no right of appeal against that decision has long been considered as a cornerstone of our system of justice. Clause 89 would take away this right from a single group—asylum seekers. It would thus remove an historic safeguard from a vulnerable group which has more to fear than most from legal errors.

Asylum is an area where issues of life and liberty are at stake and it has long been acknowledged that there is a correspondingly high duty to ensure that decisions are subject to the most anxious scrutiny. Indeed, if Clause 89 becomes law, an individual disputing a parking ticket will be afforded greater access to justice than those whose lives and liberty are at stake.

The Government's proposals are all the more disquieting in the light of the recommendations made by Sir Jeffery Bowman, who was commissioned by the Government to undertake a comprehensive review of tribunals and judicial review. These recommendations were set out in his report, Review of the Crown Office, in March 2000. Key empirical findings and recommendations in relation to the judicial review of the Immigration Appeal Tribunal were that most claims against the tribunal were successful; that the right to bring them should be preserved; and that the volume of cases would best be addressed by improvements in the tribunal's decision making at leave stage, obviating the need for individual judicial review claims.

Experience has shown—and the Bowman report confirmed—that applications for judicial review which are renewed orally have a high success rate. The Government's proposed statutory review based only on a written submission is not an adequate substitute for judicial review. Consideration of written applications can be a cursory process and go very wrong. A recent example was described by Mr Justice Munby in considering a written application to the tribunal. He said: That the Tribunal should be able to promulgate a written determination refusing leave to appeal to the Tribunal containing such grotesquely egregious errors is absolutely deplorable. It would be deplorable in any judicial context. It is all the more deplorable when the context is one as sensitive and as human rights intensive as the context with which this particular Tribunal is concerned; that is to say, rights of asylum and the potential invasion of the human rights of an asylum seeker who, if he fails to obtain asylum, may be sent back to some place which does not respect those rights. Unhappily, as it will appear in a moment, this is not the first occasion upon which in recent months this court has had to make such complaints about egregious error on the part of this Tribunal". Indeed, in a sample of 19 cases brought by the Refugee Legal Centre in the period 31st December 2000 to August 2001, where applications for permission to apply for judicial review were refused on the papers, the success rate on renewed oral applications was in excess of 50 per cent. Of the 10 cases in which permission was granted following an oral hearing, at least two of the applicants have since been granted refugee status in the United Kingdom. The remainder are currently within the appeal system. The Public Law Project provides similar statistics relating to a later period.

Not only do we have practitioners' evidence that the chances of success are higher on oral applications, we have also the evidence of experts such as Sir William Wade, who, in his book, Administrative Law, wrote: In practice it seems that the leave requirement often operates erratically. Empirical evidence shows a high success rate for renewed applications, suggesting a high rate of error at the initial stage where the judge makes only a 'quick perusal of the material', as Lord Diplock described it. The degree of arguability may vary widely, and new developments in this expanding branch of the law may be rejected at the outset as unarguable". Under Clause 89 the decision of a statutory review cannot be appealed to the Court of Appeal. In 1985, when similar attempts were made to legislate to prevent individuals from renewing failed High Court applications for judicial review to the Court of Appeal, these met with fierce resistance from both Parliament and the judiciary. At the Committee stage of the Bill in this House, Lord Denning described the proposal as a "constitutional monstrosity". In the event, the right of renewal to the Court of Appeal was preserved.

The Court of Appeal will frequently decide complex issues of law, often raising issues of public importance. Thus the Government's proposals will not only deprive immigrants and asylum seekers of yet another essential safeguard, they will also strike a blow to the strong body of refugee law jurisprudence which has developed to date.

The Government's determination to deny asylum seekers the right to a fair hearing is reinforced by their proposals to impose unworkable time limits for an application for a statutory review, which has to be made within 10 days compared with the three months time limit for judicial reviews. It is inevitable that if such an unworkable and draconian time limit is imposed, meritorious claims will either not be brought or will be badly prepared.

It is extraordinary that the Government, having recently appointed an expert committee to examine judicial review, should reject its findings without explanation, disregard the judgments of eminent jurists, ignore statistics which show that most judicial reviews against the Immigration Appeal Tribunal were successful, and seek to deprive one of the most vulnerable groups in our society of access to the courts through a process which has been a cornerstone of our judicial system.

The House of Lords Select Committee on Delegated Powers and Regulatory Reform was puzzled by the argument that if a right of appeal is too popular it should be ended. I suggest that many Members of the Committee will share that puzzlement. In order to throw some light on this issue and to do away with this puzzlement, perhaps the Minister will explain the justification for removing the right to apply for a judicial review.

In conclusion, I cannot put the case better than the Public Law Project, which stated: Everyone has an interest in ensuring that decisions on immigration and asylum cases are sound and sustainable. The government proposals do nothing to achieve that end and everything to remove a fundamental safety net from beneath a group of people who most need it". I beg to move.

4.45 p.m.

Lord Archer of Sandwell

I support Amendment No. 207B, which has been so persuasively moved by the noble Lord, Lord Joffe. I wish to speak to my Amendments Nos. 208A and 208B. I am grateful to my noble friend Lord Judd and to the right reverend Prelate the Bishop of Derby for adding their names to the amendments.

I say at the outset that my preference is for Amendment No. 207B. My amendment represents a fall-back position if my noble friends cannot find it in their hearts to accept Amendment No. 207B. If, for whatever reasons commend themselves to her, my noble friend Lady Scotland finds it impossible to accept Amendment No. 207B, my amendment would provide a fallback position.

Perhaps we should be clear at the outset that, although the hearing before an adjudicator is technically called an appeal, it is not an appeal from a judicial conclusion. It will be the first judicial hearing in the proceedings. So within the judicial system, it will be a decision of first instance. The first appeal about which we are talking is the appeal to the Immigration Appeal Tribunal.

It is, therefore, appropriate that there should be an appeal to the Immigration Appeal Tribunal. As the noble Lord, Lord Joffe, said, under Clause 89 an appeal to the IAT would lie only by leave of that tribunal. But the safeguard should be that a would-be appellant who has been refused leave to appeal may seek judicial review of the decision to refuse leave. That would not entail a state trial. It would be a decision as to whether the Immigration Appeal Tribunal had followed the correct procedure and was within the Wednesbury standard of reasonableness. The clause preserves that right, but provides that the appellant shall have no right to an oral hearing.

The Government's reasoning appears to be, "Oh well, most applications are a waste of time. They're hopeless from the outset. Why overload the system with hopeless arguments?" That reasoning disintegrates on the first breath of logical scrutiny. Even if it were true that most applications were devoid of merit, that would surely render it more important, and not less, to recognise a meritorious application among the dross. But it rests in any event on a factual misconception, as the noble Lord, Lord Joffe, explained.

Among applications for judicial review of IAT decisions at present, it is true that the majority of applications for leave to apply are unsuccessful in the first instance. But of those where the application is renewed and leave is given, two out of three transpire at the hearing to be successful. Refusal of leave is judged to have been flawed. The noble Lord cited a number of examples in that respect. But there is no guarantee that the arguments that the judge found persuasive in any of those cases would have been apparent on the papers alone.

Our procedures across virtually the whole of our legal system are based on oral argument. That is because it has been found by long experience that that is the best and fairest way to clarify the issues and the arguments. It is also usually the most expeditious way. We might have conducted our proceedings in your Lordships' House by exchanging memoranda, but we found by experience that oral debate is more likely to lead to a proper conclusion.

However, what I have sought to do in this amendment is not to open the bidding as high as the noble Lord, Lord Joffe. I suggest a moderate compromise, as I say, by way of a fallback position. I am suggesting that we should leave it to the judge, if he believes that oral argument is necessary to obtain a just result, to say so. Therefore, oral argument would not be inevitably shut out from the outset: that option would be available if the judge, who is best placed in any specific case to know what justice requires, considers it necessary.

I hope that my noble friend will not find herself in the position of saying, "Even if the judge believes that oral argument is necessary to lead to a just outcome, it will not be made available to him". That would be a monstrous affront to the judiciary, and a flagrant denial of justice. Mine is a modest amendment. If my noble friend resists Amendment No. 207B, I hope that my moderation will at least be duly rewarded.

Lord Dholakia

Amendments Nos. 207A, 207B and 209ZA have the support of these Benches. I shall speak to Amendment No. 207A and 207B, and shall leave the noble and learned Lord, Lord Mayhew of Twysden, to speak to his amendment. I am sure that my noble friend Lord Russell will want to say a few words on that a little later. I found the introduction of the noble Lord, Lord Joffe, most moving, especially the mention of his own perception about the precise impact of such clauses in the Immigration and Asylum Bill. If there are already good practices in place that we have adopted so far, I believe that it would be dangerous to remove such practices by way of this legislation. The impact of what the Government propose to do under this clause is to remove some of those good practices.

There are some very interesting examples of the way that tribunals and adjudicators perform their very important tasks. It is well established that it is their duty to ascertain whether a person fulfils the criteria of the relevant immigration rules. Obviously, in the back of the Government's mind there must be the feeling that there may be a danger of floodgates opening as regards the present situation. But it is very clear that the requirement to obtain permission to appeal to the tribunal by way of a paper application means that there is an effective mechanism of sifting out wholly unmeritorious cases.

It is currently reasonably difficult to obtain leave to appeal solely on a factual issue. The tribunal should be trusted to exercise its factual jurisdiction responsibly. At present, both practice and principle determine that the tribunal may reverse an adjudicator's findings of fact, but will give the greatest weight to factual findings that are based on oral evidence heard by the adjudicator. Thus, the tribunal does not represent simply another bite of the cherry.

There is also another reason. Adjudicators have different levels of knowledge about immigration law and practice. Some part-time adjudicators sit only on a minority of court days. By contrast, the current batch of full-time tribunal chairmen is highly experienced in immigration and asylum matters and can bring great skill to factual issues.

In relation to Amendment No. 207B, perhaps I may just say that I have a good deal of sympathy with the inclusion in this grouping of Amendments Nos. 208A and 208B, to which the noble and learned Lord has just spoken. The purpose of our amendment is to remove the proposed statutory bar to a right to an oral hearing in a higher court and retain the right to apply for a judicial review. The right to an oral hearing in a higher court is central to justice in this country. Without it, the decisions of the IAT will not be subjected to the "most anxious scrutiny". The noble Lord, Lord Joffe, was right to quote the Bowman report in relation to this matter.

I was delighted earlier to see the noble Lord, Lord Mishcon, in his place in the Chamber. I was able to tell him that I intended to use one of the quotes given to me by ILPA. During the passage of the Administration of Justice Act 1985 through Parliament, the noble Lord, Lord Mishcon, observed that, the remedy of judicial review was in the main initiated in order that, if Tribunals and Government departments acted unlawfully they could be brought to book. If it is a recommendation of a Government department to the Government that there should be an enactment which limits the rights of the person who goes for judicial review, one has to be very careful". I believe that the Government should take that observation into account, especially as it comes from their own Benches and has now been put forward by the Cross Benches.

The Lord Bishop of Southwark

The right reverend Prelate the Bishop of Derby, who has attached his name to Amendment No. 208A, has been prevented through other duties from being present in this Chamber today. Therefore, from these Benches, I rise to support the modest amendments of the noble and learned Lord, Lord Archer of Sandwell, Amendments Nos. 208A and 208B.

The right to an oral hearing in a higher court is central to justice in this country; without it, the decisions of the Immigration Appeal Tribunal will not be subjected to the "most anxious scrutiny", which is to be expected in human rights decision making. The proposal that a review would be determined by a single judge on the papers of the case, with no oral review or appeal to the Court of Appeal, would mean that the adjudicator, who might often be a lay person, would be the only person to hear an oral argument about the law.

This proposal will make asylum, human rights and immigration appeals unique among statutory appeal procedures in providing no scope for an oral hearing before a High Court judge before the case is finally disposed of. It is recognised that the Government's purpose is to avoid delays in processing appeals, but it seems that the price being paid in terms of well-tried legal safeguards is just too great.

5 p.m.

Lord Clinton-Davis

I support the remarks of my noble and learned friend Lord Archer. The noble Lord, Lord Joffe, has put a powerful case. I personally think that the issue has been slightly exaggerated. I do not believe that the proposed legislation is in all its aspects comparable to apartheid. However, the noble Lord speaks from knowledge. From that point of view, although I hesitate to agree with everything that he has said, I want to take on board that warning.

It is highly wrong that oral argument should be removed from the judges altogether. With respect, I do not believe that putting documents before them can be any substitute, particularly where cases have established that oral argument is advantageous.

The question of whether or not the case is comparable to apartheid does not remove the argument that the case put forward by the Government, which I generally support, is wholly wrong in this regard. I simply cannot see that oral argument has to be viewed with such suspicion. My noble friend the Minister is an eloquent advocate, and is someone whom we all respect. I do not believe that she would put forward that point of view beforehand. But that is not wholly relevant either. The onus of establishing that oral argument is irrelevant here rests fairly and squarely on her. With respect, I do not think that she will be able to discharge that. I may be surprised by her eloquence, but at the moment I do not think so.

My noble and learned friend has said that, as a fallback, we should consider his Amendment No. 208B, in which he has been supported by the right reverend Prelate the Bishop of Southwark. I do not believe that it is a wholly good thing to revert to that issue. It should be done only under some duress.

However, a powerful case has been made out for ensuring that the Government think again about this matter. It is not a slight issue. It is not something that those of us on these Benches who generally support the Government will easily forget. I beg the Government to think again about this issue. It is highly important. We should take on board the arguments that have been adduced so far, both by the noble Lord, Lord Joffe, and by my noble and learned friend Lord Archer.

It is no light thing to surrender the right of oral submissions. Those people—and there will be many—who will be the victims of that proposition will hold in their minds the idea that the Government have let them down—and I do not want them to say that.

Lord Judd

I am sure that my noble friends on the Front Bench will take extremely seriously the points made in the debates on these amendments. My noble and learned friend Lord Archer speaks with great authority, not only as a distinguished lawyer but as someone who has carried high legal office in government. The fact that he has put the case so tellingly cannot be lightly dismissed.

The noble Lord, Lord Joffe, speaks with a different kind of authority—that of a human rights lawyer who was in the front line of the battle for justice in South Africa. I understand that he was indeed the instructing solicitor for the defence in the Mandela trial. When someone with that background says what he has said in the course of our deliberations, it cannot be lightly cast aside.

My good and noble friend Lord Clinton-Davis says that he believes that the case is slightly exaggerated and that there is no comparison with apartheid. I do not think that the noble Lord, Lord Joffe, was making an absolute comparison with apartheid. He was saying that as he saw the rights of a particular group of people resident in Britain stripped away one by one as compared with the rights of everyone else, it reminded him of some of the characteristics of society in South Africa when he was battling for justice as a human rights lawyer.

This is the anxiety that a number of us have. With good administrative intention—not with the kind of evil objectives that those behind apartheid had—my noble friends may end up by producing a system which can be compared with apartheid rather than one that can be compared with the highest principles of British justice.

I make no apology for making the point again that I made in the debate the other evening. I find this slightly bizarre when we are beginning to introduce examinations for those who want citizenship in Britain to make sure that they understand what is good and decent about Britain. I should have said that for most people in that situation, the rule of law and justice are crucial.

Perhaps I may make two specific points and a general one. First, as a layman, it is absolutely clear to me when I look at the judicial system that a deliberation on written evidence cannot be compared in quality with a deliberation on evidence that is both written and oral. It is self-evident that it cannot be of the same quality, depth, care or integrity.

Secondly, it is very important that the credibility of the appellant can be tested, examined and seen, and that those making the assessment are able to see the response of the appellant to the examination as it goes forward. For that not to happen is very disturbing. For those reasons, these matters need to be taken extremely seriously.

My general point relates to a supplementary question that I asked at Question Time last week. I asked my noble friend the Minister whether one of the principal objectives that must concern us all was that everyone who had a valid case for asylum should be accorded asylum and that that was how we shall be judged in history. I was a bit disappointed by my noble friend's response. He said that of course that was an objective, but another objective was to have a decent, firm, fair system of law being well administered. Those are not contradictory. Both are essential.

My noble friend the Minister and his colleagues have been doing an outstandingly good job on the technical, administrative level in how they have taken the Bill through the House. There is not one of us who would not commend them on their patience and the detail and manner of their argument, all of which have been impressive and will make their mark. However, I am looking for an overriding commitment to justice from the Government. That is what they will be judged by above all. As we have said before, these people may have been through hell. Taking away from them rights that the rest of us take for granted in other dimensions of British life is the beginning of the erosion of the commitment to justice. I believe that that is what led the noble Lord, Lord Joffe, to say what he said in his opening remarks.

The Countess of Mar

I am sorry that I am not able to support my noble friend Lord Joffe. I remind the Committee of my interest as a member of the Immigration Appeal Tribunal. I cannot support Amendment No. 207A because I understand that it is a requirement of the law that the adjudicator considers the facts. Wiping out, on a point of law is not necessary. If the adjudicator has not considered the facts, the appeal should be on the case of law. Perhaps the Minister will put me right on that if I am wrong.

The noble and learned Lord, Lord Archer, pointed out clearly that Amendment No. 207B appears to take away the right of an appellant to appeal against the tribunal's decision to refuse an appeal. The only appeal then is to the High Court. We need that. I also agree that we need to be able to make oral submissions, as the noble and learned Lord made very clear.

I mentioned the other night, at heaven knows what hour of the morning, that there is a huge backlog of work in the Immigration Service. People making decisions cannot be expected to make the right decision every time. In case a wrong decision is made, we ought to give the appellants every opportunity to appeal. Quite often, they will not go on appealing if their case is flimsy. I often see flimsy cases and wonder how they have the guts to appeal, but never mind, that is beside the point. I do my best to consider each case on its merits. I would like to see each case being allowed to be considered on its merits.

5.15 p.m.

Lord Mayhew of Twysden

It was moving to hear the speech of the noble Lord, Lord Joffe. I apologise to him for having missed his first few sentences. I did not hear him allude to similarities with apartheid. From anybody else I should have thought that that was possibly slightly overstating the case, but from him all of us in the Committee have to take it extremely seriously, for reasons that have already been alluded to.

I referred previously to the inherent dislike of all governments of judicial review. The vehemence of the protests of the executive at judicial review from time to time makes the case for its value and for preserving it undiminished. I shall speak to my Amendment No. 209ZA. I can omit a lot of what I intended to say because of what has been said already. The record on judicial review of adjudications by the IAT is very persuasive. Almost twice as many cases are allowed as are disallowed. Much of the briefing that has been so helpfully provided tells us that since January this year the High Court has granted permission for judicial review of the tribunal on 62 occasions—29 on perusal of the papers only and 33 on oral hearing after the original application on the papers has been refused.

Now, in place of the full range of judicial review, the Bill substitutes application in the form of a statutory review to the High Court with a review on point of law only and limits the applicant to written submissions only. That is where my amendment comes in. I endorse everything that has been said about the importance of oral hearings, especially in the context of the life and liberty of an applicant.

If the Bill had been in force, over half of those found to have an arguable case would have lost their right of challenge, even though the case would have been granted had it been heard, because of the provisions in Clause 89(3)(a) for written submissions only.

That is had enough, but Clause 89(4) empowers the Lord Chancellor, by order, to repeal even that. The noble Lord, Lord Joffe, has referred to the Select Committee on Delegated Powers and Regulatory Reform. It is worth reminding ourselves of that committee's comments: The Committee is puzzled by the argument that if a right of appeal is too popular it should be ended. Unless the Minister persuades the House that there is a better case for retaining this power, the Committee suggests that subsection (4) should be omitted". The Government's case appears on page 26 of the report in the memorandum provided to the committee by the Home Office. Paragraph 122 reads: Subsection (4) has been introduced as a safeguard to ensure the Government can take swift, effective action if the new statutory review process is not working as it should". Mark those words, "as it should". The argument continues: If the number of applications for review exceeds those anticipated the advantages of a review to the High Court will be lost but it may be necessary to take swift action to prevent the High Court being overwhelmed". I suggest that the Government are thinking not of the High Court, but of the Home Office being overwhelmed. The High Court will always make arrangements to deal as expeditiously as may be with a press of work. The Lord Chancellor will see to it that it can if the High Court cannot do so by adjusting the number of allocated judges itself.

What is meant by, not working as it should"? The record shows that many such cases are allowed once they are heard with the benefit of oral argument. What does the provision mean, except that a tiresome number of people are having their appeals allowed? The issue lies at the root of the Government's policy in this regard.

No evidence has been given of which I am aware that the High Court has been overwhelmed so far. If it is the Home Office which has found the number of cases to be tiresome, it ought either to improve the manner in which the matters are dealt with at first instance or find a better administrative way of dealing with them internally. One might suppose that that is what the Government would wish to do—take steps to improve the quality of the original decisions—rather than to curtail opportunities to have them allowed by a High Court judge.

Under subsection (4), even this limited indulgence can be repealed by the Lord Chancellor by order. That would leave no right of appeal from the IAT because, presumably, the Government will seek to ensure by further legislation that no judicial review is allowed at all. I should like to know whether that is what is actually envisaged. It would be very helpful to know from the Minister what truly are the circumstances in which the Government envisage that the Lord Chancellor may by order seek to remove even that which is allowed in Clause 89.

I have to make this comment. So far, the Government's attitude seems to give rise to the perception that they are saying, "There are far too many of these purported asylum seekers. We wish to deny them an oral hearing because that will speed up the determination of their cases and their ultimate removal". The Government concede, "Certainly some would succeed if there were an oral presentation of their renewed application", but they would have to concede that by reason of the statistics cited. However, it appears to be the Government's attitude that you cannot win them all. That is profoundly unjust in my view. It is also inexpedient because it feeds a popular and very lamentable feeling that all these asylum seekers are dishonest and really ought to be removed anyway.

What the Government are doing in this clause is to give half a loaf where there should be a loaf. In subsection (4), they are reserving to themselves the right to say, "If there are too many hungry people forming a tiresomely numerous queue for their half a loaf, then we'll deal with that by taking away the right even to half a loaf". That is an unattractive attitude. I shall be very glad either to hear how the Government can justify it or to hear them disavow it.

Baroness Carnegy of Lour

In speaking to Amendment No. 209ZA, my noble friend Lord Mayhew suggested that subsection (4) should be removed. I should like to ask the Minister how subsection (4) will relate to Scotland should that subsection and indeed the rest of the clause stand as currently printed. In the next group of amendments—in Amendment No. 208, I think—the Government are acknowledging that, under subsection (2) of Clause 89, an asylum seeker in Scotland would appeal to the Court of Session rather than to the High Court for review of the tribunal's decision. That is my understanding of Amendment No. 208. Once that change is made in the Bill, could the Lord Chancellor by order, under subsection (4), repeal subsections (2) and (3) in relation to the Court of Session in Scotland? It may well be that he can, because I believe that his writ does run when it comes to these tribunals. I may be wrong about that. I am not a lawyer; I am simply trying to follow the logic of this.

It seems rather strange that it is the Lord Chancellor who will assess whether the Court of Session is overburdened with appeals, and therefore whether subsections (2) and (3) have to be repealed. Or, rather, is the point that, as this Bill is a UK Bill, if the High Court is ever overburdened, there will be no appeals to the Court of Session either? I hope that the Minister understands my perhaps rather ill-expressed question. However, there does seem to be a question. We need to know how subsection (4) will operate in relation to the Court of Session in Scotland.

Earl Russell

I should like to congratulate the noble Baroness, Lady Carnegy of Lour. One such accident might happen to any government, but two savours of carelessness. It does seem that the Government have not entirely taken on board thinking in a devolutionary manner. Although I think that that was to be expected, devolution has been going for a little while now and it is time that we got on with it.

I rise to second the amendment of the noble and learned Lord, Lord Mayhew of Twysden, to which I put my name. He said so much that I shall add very little. I was taught my suspicion of the Henry VIII clause by his colleague the late Lord Rippon of Hexham, the spiritual begetter of the Delegated Powers and Regulatory Reform Committee, who taught me a great deal of what I know about procedure. Obviously, in some cases, there are arguments for Henry VIII powers; the classic one is the power to uprate used in social security orders every year. However, as I understand it, it was not the purpose of the power to allow the taking away of legal rights of appeal by the Lord Chancellor by order without any parliamentary proceeding simply because they did not suit him or were a nuisance.

I think that this is a gross abuse of the Henry VIII power, and I hope that the Government will continue the honourable record of both this and the previous government of paying serious attention to the passages where the Committee says that it "must draw this to the attention of the House". I remember the late Lord Rippon insisting that the Committee must not say anything stronger than that, because the decision must be not that of the Committee but that of the House. I respected that decision of his, and I hope that we observe it.

I support also the other amendments in this group. I found, too, the noble Lord, Lord Joffe, extremely moving. I interpreted him in the way set out by the noble Lord, Lord Judd. I also found him very difficult to answer, and I shall not attempt to do so.

Like many others, I am amazed at the lack of judicial appeal on points of fact. If I may, I say to the noble Countess, Lady Mar, that I mean no disrespect whatever to the Immigration Appeal Tribunal. So many errors creep into the process in fact at a lower stage that not even an Olympian Immigration Appeal Tribunal could spot them all. For example, appeals have been turned down for lack of credibility because, under General Mobutu in Zaire, opposition parties were allowed to operate freely. That was not an error of law. People have been found not to have been tortured because the scars were "self-inflicted" although they were on their back. That was not an error of law.

Until the determination of fact at the lower stages of the process is much better than it is now, and if—God forbid—we were forced to choose between appeal on points of law and appeals on points of fact, I should have thought that points of fact were the more important.

5.30 p.m.

Lord Corbett of Castle Vale

I hope that I will be forgiven for reminding the Committee of one of the reasons why we have this Bill in front of us. It would be very difficult, I think, to find many people in the United Kingdom who felt that the existing law was anything like as fit as it should be for its purpose in dealing with these important matters. My noble friends the Ministers have several times made the point that one of the Bill's main aims is to reinforce the one-stop appeal system.

As any of us who have had even slight experience with people claiming asylum in this country will know—this is the fact, although I readily confess to noble Lords that I very often share the reservations of my noble friend Lord Rooker about what he calls "the legal trade"—in asylum applications, it is not unknown for solicitors and others involved in the process to say, "No; don't do all this at once. Save that bit for a later stage. In case the original claim fails, we need some other argument in order to apply for appeal and to keep that appeal process going". That must happen. Certainly it has occurred in my experience. The Committee is in danger of losing sight of that. However, that is not to "do down" those coming here to claim asylum.

It is our duty to do what we can to put in place a system which is fair to all those claiming asylum but at the same time deals expeditiously with those claims. We witnessed the result of not doing so in Lye, Stourbridge. After weeks and weeks of protracted negotiation with a family who had taken refuge in a mosque in the village of Lye on the outskirts of Stourbridge, the Home Office felt that it had no alternative but to use force to gain entry to the mosque to implement the decision to deport the family whose asylum application had originally been made in Germany and turned down. They escaped from custody in Germany—these matters must be faced—and paid to be smuggled into the United Kingdom to make a further application for asylum here without mentioning that there had been an earlier application in Germany. None of us wants to see that kind of situation. Such situations are unfair to asylum applicants and their families.

The people of Lye commendably felt that an injustice had occurred and made the point—I do not dispute that—that after two years the family concerned, who were originally from Afghanistan, had settled into their community. Such a reaction in those circumstances should make us all proud of the people of that community. However, that is not the point I wish to draw to the Committee's attention. That situation arose because of a failure on the part of the present system to deal expeditiously with that asylum claim. As I have said before, it is my view, whatever other arguments may be put forward, that we must change the present culture so that when an asylum claim is made those who handle the claim should put all the cards face up on the table right at the start of the process and not be tempted to save certain matters for a later day.

I have great regard for the noble and learned Lord, Lord Mayhew of Twysden, and I believe that he is aware of that. However, I find his assertion with regard to the different outcomes of a judicial review decided on paper and that decided after an oral hearing rather difficult to justify, if I may put it that way. The inference was that the oral applications succeeded primarily because they were oral and that those conducted without an oral hearing failed because an oral hearing did not take place. I say with great respect to the noble and learned Lord that there is not the slightest evidence to support that. I suppose that that inference could be drawn but I do not believe that it stands up to two minutes' investigation. I understand that we employ Law Lords on occasion to trail through the entrails of such claims.

As one or two Members of the Committee have said, we can stretch some comparisons too far. I refer to the comments in regard to the apartheid regime made by the noble Lord, Lord Joffe. We were aware of the stated legal purpose of that vile regime which existed in South Africa. I cannot believe that a single Member of your Lordships' House believes that the purpose of this Government or any other government that we can imagine in this country is anywhere remotely near that. Motives play a part in this matter. It is to the benefit of all of us, including asylum applicants and their families, that we put in place a fair process which delivers a result much faster than does the present system. That point needs to be underlined.

That said, I say to my learned noble friend on the Front Bench that I very much hope that she will take on board the points made by my noble and learned friend Lord Archer of Sandwell. I accept the general thrust of what the Government are trying to do here. I remind the Committee that we are discussing an appeal to a tribunal where there has been a refusal of an original application. We want the one-stop-shop approach. I hope that my learned noble friend who will respond to the debate will think carefully about what my noble and learned friend Lord Archer said. In my view it gives nothing away to give the sole judge who will hear the appeals we are discussing discretion to say, "I do not feel that I am able in this particular case to come to a secure judgment solely on the basis of the relevant papers" and therefore to enable that judge in those circumstances to say that he wants to hear some oral argument.

Lord Goodhart

I apologise to the Committee for making a second intervention from our Front Bench on the matter. I do so only because there are a couple of rather detailed questions on the interpretation of Clause 89 which I should like the Minister to answer when she responds to the debate.

First, I refer to subsection (2) of Clause 89. What is the meaning of the words, a review of the Tribunal's decision"? Is that decision the tribunal's decision on the actual appeal which it hears or is it its decision simply to refuse or grant permission to appeal to itself? Common sense suggests that what it ought to mean is that the High Court can review the tribunal's decision on the appeal. However, a reading of subsection (2) of Clause 89 suggests otherwise because one would then expect it to state, A party to an appeal to the tribunal", instead of, A party to an application to the Tribunal for permission to appeal". It seems to me that there is serious uncertainly there.

Secondly, I refer to subsection (4) of Clause 89. The Home Office in its memorandum to the Delegated Powers and Regulatory Reform Committee clearly considered that subsections (2) and (3) create certain rights which, if they were overused, might be taken away. The Delegated Powers and Regulatory Reform Committee, of which I am a Member, took at face value the effect of subsection (4). However, it can be argued that subsections (2) and (3) simply impose certain restrictions on the normal right of judicial review of an inferior tribunal. If that is so, the effect of removing subsections (2) and (3) would be to improve the position of the immigrant or asylum seeker because then the ordinary right of application for judicial review, which includes a right to an oral hearing when permission is being sought, would arise again. I hope that the noble Baroness can respond to that point.

Lord Kingsland

I should remind the Committee at the outset of my remarks that subsections (2) and (3) of Clause 89 were introduced as amendments in the Standing Committee in another place and were not spoken to by the Minister or debated by that Committee because of the operation of the guillotine Motion. Subsection (4) was introduced by the Government at Report stage in another place and could not be discussed for similar reasons. Apart from the debate in your Lordships' House at Second Reading, therefore, there has been no prior scrutiny of these provisions.

On Amendment No. 207A, which appears in the name of the noble Lord, Lord Joffe, I, like many other Members of the Committee, will be most interested to hear from the noble Baroness an explanation of exactly why the Government believe that appeals to the Immigration Appeal Tribunal should be limited only to points of law and what the Government think is wrong with the present system in that regard.

The White Paper contained no justification for the proposed change, which was covered by the single sentence in paragraph 4.66. It stated: The Tribunal will focus entirely on the lawfulness of adjudicators' decisions rather than their factual basis". In particular, I should be grateful if the noble Baroness would tell the Committee how many appeals on the facts are allowed by the IAT and how many have been refused. If she cannot do that this afternoon, perhaps she would kindly undertake to place those figures in the Library.

I turn to Amendment No. 207B, which also appears in the name of the noble Lord, Lord Joffe. It is important to note that the Government's original intention, which was also signified at paragraph 4.66 of the White Paper, Secure Borders, Safe Haven, was to make the IAT a superior court of record, as the Employment Appeal Tribunal now is. That would, of course, have had the effect of removing the right to judicial review of its decisions. The Government, plainly, have decided not to pursue that course.

The amendments brought forward in another place, nevertheless, are rather strange. They would provide for a new statutory review procedure in the case of a refusal of permission to appeal by the tribunal. I should particularly welcome the Minister's comments on the limitation of the review process to errors of law under Clause 89(2). I assume that that would not include other grounds of judicial review, such as bias on the part of the tribunal or procedural unfairness. Is it really the Government's intention to exclude those grounds of review altogether or do they believe that they are covered by the term "error of law" in subsection (2)?

I turn to the amendments tabled by the noble and learned Lord, Lord Archer of Sandwell. The Minister, as many Members of the Committee have said, will have to put forward a powerful case to rebut the arguments advanced by the noble and learned Lord. If a judge thinks that it is in the interests of justice to have the arguments advanced before him orally, why on earth do the Government propose to prohibit him from hearing such arguments on his own motion?

I turn to Amendment No. 209ZA, which appears in the name of my noble and learned friend Lord Mayhew of Twysden, and to Amendments Nos. 209ZB and 209ZC, which appear in my name and that of my noble friend Lady Anelay. They are concerned with the proposed power to repeal by order the new statutory review procedure contained in subsections (2) and (3). My argument will, broadly, follow that outlined by the noble Lord, Lord Goodhart.

In their memorandum to the Delegated Powers and Regulatory Reform Committee, the Government stated in paragraph 122: Subsection (4) has been introduced as a safeguard to ensure that the Government can take swift, effective action if the new statutory review process is not working as it should. If the number of applications for review exceeds those anticipated the advantages of a review to the High Court will be lost but it may be necessary to take swift action to prevent the High Court being overwhelmed". I hope that the Minister will explain what the Government mean when they say that the advantages of a review by the High Court will be lost if there are more applications for review than they anticipate. Are the advantages that will be lost advantages for the Government or the appellant? How many applications for review do they anticipate and at what level of applications do they intend to invoke the powers in subsection (4) to do away with the review process?

I hope that the Minister will be able to give a full response to the concerns of the Delegated Powers and Regulatory Reform Committee, expressed at paragraph 7 of its report. It stated: The Committee is puzzled by the argument that if a right of appeal is too popular it should be ended. Unless the Minister persuades the House that there is a better case for retaining this power, the Committee suggests that subsection (4) should be omitted". My amendment and that of my noble and learned friend would achieve that by a slightly different route.

My noble and learned friend seeks in Amendment No. 209ZA to remove subsection (4) altogether. My amendment seeks to meet the Government's own argument that Clause 89(4) is simply a safeguard by providing for subsection (4) to cease to have effect after two years have elapsed; in other words, it is a sunset clause.

That is a generous period of time, and if the Government's intention in including subsection (4) is to stop the High Court being overwhelmed by applications for review because they are uncertain about the number of applications that will be made, they will, as a result of the amendment, be able to dispense with the power in subsection (4) if their fears prove unjustified. They would, however, be able to provide for the continuation of the power by an order made by affirmative resolution if such fears remain.

If the Minister is hostile to these amendments, she must explain why given that they meet the Government's own argument for the retention of subsection (4), as outlined to the Delegated Powers and Regulatory Reform Committee; namely, an immediate and overwhelming increase in the number of applications for review.

These provisions in the Bill went undebated in another place; given the implications of the Government's proposal, which has been questioned on all sides of the Committee, I hope that the Minister will take up the invitation that I extended to her to explain and justify what the Government propose in Clause 89.

5.45 p.m.

Baroness Scotland of Asthal

I say immediately, and to my noble friend Lord Judd in particular, that nothing that has been said by Members of the Committee today will be lightly tossed to one side. This Committee debate has engaged the attentions of my noble and learned friend Lord Archer, the noble and learned Lord, Lord Mayhew, the noble Lords. Lord Dholakia and Lord Goodhart, the right reverend Prelate the Bishop of Southwark, my noble friends Lord Clinton-Davis, Lord Judd and Lord Corbett, the noble Countess, Lady Mar, the noble Baroness, Lady Carnegy, the noble Earl, Lord Russell, and—last but by no means least—the noble Lord, Lord Kingsland, for one hour and 15 minutes. That can do nothing but put terror in the heart of those who have had to listen.

I hope that I shall be able to ease the troubled spirits of Members of the Committee on this issue. The noble Lord, Lord Kingsland, rightly said that these matters were not debated in another place. Clause 89 is a very important clause. It goes to the heart of our policy of ensuring that the immigration and asylum system is as fair as possible while improving the speed and efficiency with which cases are processed.

I say to the noble Lord, Lord Joffe, that we remain jealous of our procedures in this country. We jealously guard the fairness, integrity and probity of our system. The noble Lord should not be disquieted for a moment by the thought that we may negligently cast that to one side. We will not do so. The approach that has been taken in relation to the creation of a statutory review has been very careful indeed.

As I said, I am conscious that the other place did not have a chance to discuss Clause 89. Therefore, I hope that the Committee will find it helpful if I set out in some detail its purpose and effect. In doing so, I hope that I shall be able to answer fully the issues raised by a number of Members of the Committee, especially because the new statutory review process is just that—it is new. After I have explained—I hope, helpfully—the way in which we envisage the system will work, I shall, if I may, turn to the amendments that have been tabled.

Clause 89(1) allows the party to an appeal to an adjudicator to appeal to the tribunal against the adjudicator's determination on a point of law, provided that permission is granted by the tribunal. The current right of appeal to the tribunal, which is also subject to permission being granted by the tribunal, is on a point of law or fact.

At this point, I shall take up a matter to which the noble Countess, Lady Mar, alluded from her experience of sitting as an adjudicator.

The Countess of Mar

Not as an adjudicator but as a member of the tribunal.

Baroness Scotland of Asthal

I beg the noble Countess's pardon. If the adjudicator has the facts wrong, as outlined by the noble Lord, Lord Joffe, and it leads to a perverse determination by the adjudicator, that perverse determination may be appealed on a point of law to the IAT. The IAT will consider whether leave should be granted. If it agrees, the appeal will go to the IAT for a full hearing.

Subsections (2) and (3) of Clause 89 provide for a new statutory review process. Clause 89(2) allows the party who was refused permission to appeal to the tribunal to apply to the High Court for a review of the tribunal's decision on the ground that the tribunal made an error of law. Subjection (3) sets out that a single High Court judge must determine the application on the papers only. The judge may affirm—

Lord Goodhart

Therefore, do I understand the noble Baroness to say that the application is only for a review of the decision of the tribunal not to hear the appeal?

Baroness Scotland of Asthal

Perhaps I may explain. An adjudicator makes a decision. If the applicant wishes to appeal against that decision, he may then apply for leave to a vice-president or president of the IAT. If the application for leave to appeal is refused, it is that application for leave which can then be appealed to the High Court. If, under statutory review, the High Court judge determines that the adjudicator and the vice-president or president were wrong, the matter is then sent back for a full hearing before the IAT. That is how the process works.

Clause 89(3) sets out that a single High Court judge must determine the application on the papers only. As I said, the judge may affirm or reverse the tribunal's decision. That decision will be final. In addition, if the judge considers that the application has no merit under subsection (3), he is required to issue a certificate to that effect.

Clause 89(4) provides the Lord Chancellor with the power to make an order to repeal statutory review. Any such order will be subject to the affirmative resolution procedure and so will not be made unless a draft has been laid before, and approved by, each House of Parliament. We have confidence that statutory review will provide an effective alternative remedy to judicial review for this category of case.

Lord Goodhart

I am sorry to intervene again. Does it therefore also follow that, if permission is given to appeal to the tribunal and the tribunal hears a case, that decision of the tribunal will be subject to judicial review in the ordinary way? If so, that is helpful.

Baroness Scotland of Asthal

I am glad that the noble Lord finds it so. As I said, we have confidence that statutory review will provide an effective alternative remedy to judicial review for this category of case and that the order-making power will not be used. However, as all Members of the Committee know, asylum tends to be a very problematic area for the appeals and court system. We are introducing statutory review as an entirely new provision and consider it to be a sensible precautionary measure.

We have tried as hard as possible to think of a scenario which might lead to calling upon this provision. It is clear that, at present, that is difficult to envisage. But we know from experience that that which is difficult to envisage at the time of creation in hindsight becomes foreseeable. Therefore, Clause 89(4) is included as a sensible precautionary measure and nothing more.

The process of statutory review is a very important part—

Earl Russell

I beg the noble Baroness's pardon. I still do not understand the precaution. What is it a precaution against?

Baroness Scotland of Asthal

If we were to find that, contrary to our expectation, the process was neither as speedy nor as efficacious as we believed it should be or that subsequently it was found to have some other fundamental flaw, that is the basis on which it would be reviewed. But, as I said, that would be done by affirmative resolution. Therefore, an order would come before this House and the other place. The reasons that it was considered no longer to be feasible would be laid out, and this House and the other place would be able to express their views.

Earl Russell

If the noble Baroness wishes to reassure us on this matter, can she give a reassurance that future reform of this House will not, as suggested by the Government's White Paper, involve depriving us of the power to reject such affirmative resolutions?

Baroness Scotland of Asthal

The noble Earl knows that it would be most injudicious of me to say anything in response to his comment. Therefore, I shall save my breath to cool my porridge, if the noble Earl will allow me so to do.

This area has troubled us all greatly. We believe that it would be right to reserve the position as I have described. The new process of statutory review forms an important part of our policy for reducing delays in the asylum process. One of the biggest causes of delay is judicial review. I know that in many cases in your Lordships' House it has been said that judicial review is a blunt instrument or perhaps not the most appropriate instrument that can be used in relation to immigration cases. We bear that very much in mind.

Many asylum judicial review applications take five months or more to pass the permission stage. However, from April 2001 to March 2002 only 14 per cent of asylum judicial review applicants were granted permission. If permission is refused, the applicant can still seek leave to appeal to the Court of Appeal. Therefore, we have introduced statutory review in order to bring a speedier and final conclusion to many cases which previously would have sought judicial review. At the same time, we are ensuring that we still retain High Court judicial scrutiny.

I know that in relation to this matter the noble Lord, Lord Joffe, asked why we should treat these cases any differently from all others. A very sad fact is that in this category of cases a number of people do not seek a determination of their claim. They seek delay. That is unusual indeed because in any other form of adjudication the litigants usually want a result; they want their claims determined. Only in this area is there a category of applicant—I do not say a majority—who do not seek resolution. Realising, perhaps for good reason, that they have no legal justification, they seek an opportunity to remain within the jurisdiction.

In such cases we do not refer to those who are anxiously seeking asylum. A delay to those who anxiously seek asylum causes great pain, difficulty and hardship. Those who want to have their asylum applications determined want them determined speedily so that they can get on with the rest of their lives and so that they can have the security and safety that they crave. Many asylum seekers make that claim and say that they want to know and they want to know quickly.

6 p.m.

Lord Goodhart

In that case, if subsections (2) and (3), as I now see, are directed towards simply creating an accelerated way of dealing with judicial review of decisions not to grant leave to appeal, what good would be served by using the power in subsection (4) to remove subsections (2) and (3)? Surely such a move would restore the status quo and leave the matter open for the decision not to grant leave to appeal to be judicially reviewed.

Baroness Scotland of Asthal

That is precisely so. This is not a strategy to try to get rid of judicial review. There is nothing underhand or inappropriate. We understand that we are moving to a new process, which is different from that to which we have been used over a long period of time, namely, judicial review. We are confident that this new statutory review process will succeed. If, for a reason that we cannot currently divine, it proves not to be the most successful or most just way of dealing with such applications and we bring a resolution before the House to support an order to rescind Clause 89(4), judicial review would return.

We are not using this to make matters worse; we are saying that if we find that the justice of the situation does not fall as we currently envisage, then that would be the safety net. We would revert to the situation that we have now. I hope that I have been able to reassure all noble Lords who are concerned about it that there is no pernicious or inappropriate intent in that regard. I see that the noble Lord is puzzled because, doubtless, he thinks that this is shooting ourselves in the foot and that it would be better just to get rid of it. But noble Lords can see how open the Government are.

Lord Mayhew of Twysden

I have already asked the Minister this question. Does she now say that the Government would not come forward with further legislation to meet the perceived inadequacy of what is contained in subsection (4) rather than revert to untrammelled judicial review? Can she give the Committee the assurance that no further legislation will be put forward in substitution?

Baroness Scotland of Asthal

With the noble and learned Lord's long experience of government he will know that I would not possibly be able to say at this point that we would not bring forward further legislation. If there were a hiatus between the position that prevailed between any order and any new legislation, the gap, if I may respectfully put it so, would be filled by a re-emergence of judicial review.

Lord Mayhew of Twysden

I am grateful to the Minister. Does not her understandable inability to give such an assurance deprive noble Lords of any comfort on the point that she has made about reverting to untrammelled judicial review?

Baroness Scotland of Asthal

We would return to the status quo until such time as Parliament had an opportunity to debate the matter. At this stage I cannot say whether the Government's view would be to return to judicial review and that no further statutory construct should be created to fill the gap. I just do not know. I can reassure noble Lords that when we have considered this provision, we believe that statutory review will work because it is directed towards leave. Applications for leave will have three judicial eyes because they will be considered by the adjudicator, then by the vice-president or president of the IAT, and then by a High Court judge. If the High Court judge feels that there is something in it—if I can put it colloquially—it would go back to the IAT for a hearing.

A number of noble Lords have said that if the judge wanted sight of it again—the noble and learned Lord, Lord Archer, made this point—what would happen if he was not sure? One knows about the exercise of judicial discretion. If the High Court judge felt that there was something in it, it should be explored. It would be open to him to say that the matter should go hack to be heard by the IAT and thereby there would be an oral hearing.

There is also a new nuance on statutory review. On occasions when a court considers paper determinations, it is right that the court is aware that there is some other avenue available should that paper determination go against the party; for example, under JR there would be an opportunity for an oral hearing. On this occasion the High Court judges, who will be seized of this matter, will know that if their paper determination is that there should be no further appeal, their decision will be final. I am sure that noble Lords who have had anything to do with the judicial process know that that will weigh heavily indeed upon the judges who will make that determination. If there is a doubt or a concern and if the matter needs to be considered, my expectation is that in those cases the judges would be more likely to say that that is something that the IAT should consider.

Lord Archer of Sandwell

I am grateful to my noble friend. With her great experience, she will know that one of the great contributions that oral argument can make is the opportunity for counsel and solicitors to conduct research and to come forward with the requisite authorities. That would be for the purpose of enabling the High Court judge to reach a decision. Even if the judge says, "I will need that kind of assistance", is the Minister saying that that assistance will not be forthcoming and so the judge has to say either that the case has to go back to the tribunal, or that there shall be no further appeal?

Baroness Scotland of Asthal

In the example given by the noble and learned Lord, the judge will know that it is an application in relation to leave—a refusal to leave—by the IAT. The most appropriate court to hear appeals from the adjudicators is the Immigration Appeal Tribunal; if I may respectfully say, not a judge sitting in the High Court who has various generic experience, but who may not have the knowledge and acuity particularly directed towards immigration cases. So the High Court has the advantage of, first, reading the determination made by the adjudicator; secondly, looking at the issue on a point of law that was made by the IAT president or vice-president; and thirdly, determining whether the arguments put forward before the adjudicator and by the vice-president are flawed on a point of law, which would include a perverse assessment of facts. The judge would then decide whether on those bases he or she should say, "No, this is unmeritorious and it should stop here", or that the matter should be sent back to the IAT for the appeal to be determined on a full hearing.

Furthermore, the application is made to the High Court by the appellant alone. There is no opportunity for the Home Office to respond. The appellant is entitled to make his best case. So the skeleton argument and the basis upon which he says that the first and the second decision were flawed could be put in full before the High Court judge.

Lord Archer of Sandwell

Perhaps I may have just one more try. The High Court judge's function is to decide whether the IAT "got it right". If the High Court judge says, "I cannot decide whether the IAT got it right because I have not been given the facilities for deciding", is his only remedy to send the matter back to the IAT?

6.15 p.m.

Baroness Scotland of Asthal

On the current construction that would be so. But the judge would be saying that the vice-president in making his determination did not satisfy him that there was not an issue to be tried. He would be saying, "I need to hear oral argument". The noble and learned Lord will know that this is not a rehearing before the IAT. In fact, if one looks at how the law has developed and where the authorities point, an appeal now to the IAT is an appeal on a point of law and not on a point of fact. It is on a point of fact only if there is a perverse judgment and on law otherwise.

Therefore, I would respectfully suggest that the right response would be for the judge to say that the IAT could not have got the matter entirely right, "Because I am not persuaded. If I ant not persuaded, surely there is something for the IAT to hear. In which case, it should jolly well get on and hear it". It is not—if I may respectfully say so—that difficult. But we need to have a careful approach in relation to this. Of course it is new. That is why we have been very careful indeed about it.

The noble Lord, Lord Kingsland, said that the White Paper put forward the idea of making the Immigration Appeal Tribunal a superior court of record. The intention was that it would mean that there was no scope for judicial review of the tribunal's decision on permission to appeal. However, as is often the case, there followed some helpful discussions with the Lord Chief Justice, the president of the tribunal and other senior members of the judiciary. A statutory review process has been designed which will provide more effective protection than would exist with the superior court of record proposal. As a result of our discussions with the senior judiciary we are confident that we can manage the Administrative Court and its workload efficiently.

Many people make judicial review applications with good reasons. But there is concern that many others apply for judicial review with weak cases as a way of taking advantage of the lengthy delays that can ensue with judicial review. Statutory review will only replace judicial challenges of tribunal decisions to refuse to grant permission to appeal against the adjudicator's determination. It will not stop judicial review applications against other categories of decisions. We have focused on this particular type of challenge as analysis has shown that at least half of all asylum judicial review applications are triggered by the tribunal refusing permission to appeal. Statutory review should lead to a significant reduction in the number of judicial review applications to the Administrative Court.

At the moment, only around 12 per cent of judicial review applications against tribunal refusal of leave are granted. Therefore, 88 per cent are refused. I suggest that that indicates that in the vast majority of cases the vice-presidents of the Immigration Appeal Tribunal get the permission decision right, with the High Court deciding that there is a case to be heard in only a small number of applications. I am sure that the Committee would agree that where errors of law have been made, they should be corrected as quickly as possible.

We fully appreciate that a prolonged process can cause great anxiety, as I said earlier, to many who have an uncertain status in this country. For those people, speed is of the essence. However, we also know that others whose cases do not have the same merit may wish to prolong the process, possibly indefinitely. We therefore need to strike a balance. Justice demands that a case is dealt with quickly. It is important to bear in mind that this is a review of a judicial decision, not of an administrative decision by the Secretary of State.

A case will already have been looked at by three expert pairs of eyes before it can go to statutory review—the IND, an adjudicator and a vice-president of the Immigration Appeal Tribunal. They have each decided that it is not meritorious. It will then go to another expert, a judge in the Administrative Court, who works in the judicial review jurisdiction and who would usually consider judicial review applications for permission on paper. The judges can check if meritorious or novel points of law have been missed previously. If the judge considers that there has been an error of law, the matter will be sent back.

Statutory review will therefore tackle the problem of delays by ensuring that cases are dealt with quickly, while providing an effective alternative remedy to judicial review for those cases where the tribunal has made an error of law. Those with a valid case will have access to speedy justice. Those who want to make vexatious use of the judicial process will be frustrated in their aim.

Judicial review will still exist for other aspects of the immigration and asylum process; for example, challenges against certificates or removal directions, or the administrative process in IND. We intend that the statutory review will work as I have described.

I add that our intention is that an application must be made within 10 days of receiving the decision. I also add that the time limit will be set out in the Civil Procedure Rule. That will be either in the rule or in a practice direction. So the time limit is subject of course to approval of those responsible for the Civil Procedure Rule or the practice direction; that is the Civil Procedure Rule Committee or a member of the senior judiciary. The only ground for making an application is that the tribunal has made an error of law. It is a narrow test; but not so narrow that those cases that would have once resorted to judicial review are unable to use that route.

The High Court will be expected to deal with these cases within 10 working days. A judge looking at the papers will either affirm or reverse the tribunal's decision. If the judge affirms the tribunal's decision, the decision is final. There is no oral renewal and no further onward right of appeal to the Court of Appeal. That is the end of the road. The case will therefore have been dealt with within four weeks by statutory review, as opposed to five months or more by judicial review.

In addition, where the High Court judge considers that the application has no merit he will have a duty to issue a certificate to that effect. That will go to the applicant, his legal representatives and the Legal Services Commission. If the case has received funding from the Community Legal Service the commission will decide whether the lawyer should be paid for the work done on the meritless application. That will require changes being made to the commission's funding contract and to the funding order.

It is essential that we have a properly functioning system of immigration and asylum appeals and the opportunity for High Court judicial scrutiny of decisions. We are committed to speeding up the asylum process, while maintaining proper standards of fairness and ensuring that it is not undermined by meritless applications made simply to cause delays. The statutory review is one of our key measures to achieve a better system.

I see the noble Baroness, Lady Carnegy, rising to her feet. I shall come to the points that she raised, if she will just give me a little time.

I shall now deal with the amendments in turn. I know that I am taking a good deal of time over this, but it was right that the Committee spent as long as it did exploring the issues, and I should like to give a full response.

Turning to Amendments Nos. 207A and 207B, the Government are unable to accept Amendment No. 207A, as it would maintain the present position under the 1999 Act, where the ground of appeal to the Immigration Appeal Tribunal against the adjudicator's determination is on both points of law and points of fact. Increasingly, it has been the tribunal's practice to grant permission for an appeal to it only where a point of law is at issue. We therefore intend primary legislation to put beyond doubt that the tribunal should be able to focus wholly on whether the adjudicator's determination gives rise to a point of law. We consider that to be a better use of judicial resources in a two-tier appeal system. Furthermore, as I am sure that many Members of the Committee are aware, Sir Andrew Leggatt recommended in his report on the review of tribunals that appeals to the second appeal tier should be on a point of law only.

The Government are also unable to accept Amendment No. 207B, as it would entirely remove the statutory review process from the Bill. For the reasons that I explained, statutory review is an important part of our policy to provide a fair but swift and efficient system. I hope that my explanation of statutory review will enable the noble Lord to withdraw his amendment.

I turn to the amendments tabled by my noble and learned friend Lord Archer of Sandwell and the right reverend Prelate the Bishop of Derby: Amendments Nos. 208A and 208B. They would extend statutory review to include oral submissions. The Government are unable to accept the amendments because they would undermine the objectives of statutory review, as I hope that I have fully explained.

I understand the depth of feeling that the Committee attaches to the giving of oral evidence in courts. If this exposition does nothing else, it demonstrates my commitment to the oral tradition. However, the provision does not detract from the oral tradition. Statutory review provides a quick process to correct errors that may have been made by the tribunal, so that cases can be sent back to the tribunal, where oral evidence can be given.

The amendments do not account for the fact that statutory review is a review of the tribunal's decision to refuse permission to appeal on the grounds that it has made an error of law; it is not a re-hearing.

Lord Archer of Sandwell

At the risk of being tiresome, perhaps I may make a short point. We are dealing not with oral evidence but with oral argument.

Baroness Scotland of Asthal

I entirely agree; we are dealing with oral argument. However, the Committee will know that the ability to translate oral argument into skeleton argument, so that the court has the full benefit of the advocate's voice—if not in its presence, on paper—has greatly enhanced the value of the written argument. That is presented in a way that was previously not the case, when one simply had the grounds and not a fully argued skeleton by which the court could judge the basis on which oral argument would be advanced if the matter came before it. As the Home Office does not have the right of response at that stage, the court has unalloyed the full flavour of what the appellant or applicant would seek to put before it had he an opportunity to engage in oral argument.

As I said, the statutory review process deals with the refusal; it is not a rehearing. Instead of going through the process of judicial review to challenge the tribunal's decision to refuse permission to appeal against the adjudicator's determination, the tribunal's decision will be swiftly checked on an error of law by a High Court judge considering a paper submission only. Again, I stress that it is a review of a judicial decision, not of administrative decisions, which are usually the source of judicial review applications. The original administrative decision by the Secretary of State would already have been tested through an appeal to the adjudicator, and subsequently by the adjudicator's determination by a leave application to the tribunal. The Committee will know well that usual judicial review does not offer the advantage of a full hearing before an adjudicator before the case is then heard again.

Last, but by no means least, I turn to the amendment tabled by the noble and learned Lord, Lord Mayhew, the noble Earl, Lord Russell and the noble Lord, Lord Dholakia, which would remove subsection (4). I hope that I have fully explored the reasons why we consider the provision a helpful one to keep on the stocks. I tell the Committee openly that I do not envisage our taking advantage of it. However, I may be proven wholly wrong. Something unexpected may happen and we may have to revisit that decision. The provision is there just in case.

I turn to the question asked by the noble Baroness, Lady Carnegy. As we will be introducing statutory review to Scotland, the Lord Chancellor will not make an order unless he has first consulted with Scottish Executive Ministers. From that, I take it that if the Scottish Executive were minded to continue with the provision, they could do so—obviously, having consulted the Lord Chancellor. If I have in any way misunderstood the current position, I shall write to the noble Baroness.

The Delegated Powers and Regulatory Reform Committee criticised Clause 89(4) and suggested that it should be omitted. The Committee was specifically concerned that the Home Office memorandum justified subsection (4) as needed to prevent the High Court being overwhelmed". The Home Office memorandum could have been clearer and more felicitiously expressed on that point. We are not so much concerned that the High Court will be overwhelmed by statutory review applications, as we would not have made this proposal unless we had discussed its potential impact with the Administrative Court and the senior judiciary.

Baroness Carnegy of Lour

I know that time is rushing on and the noble Baroness must finish, but is she saying that the Lord Chancellor might repeal subsections (2) and (3) south of the Border, but not north of the Border—or the other way round? Perhaps she would prefer to write to me about that.

Baroness Scotland of Asthal

I shall certainly write to the noble Baroness, but, as I understand it, the Lord Chancellor would consult Scottish Executive Ministers before making an order. If the Scottish Executive wanted to keep the provision, we would seek to draft the order in such a way as to allow the provision to remain in Scotland, in accordance with the usual procedure. Obviously, that would be a matter for consultation. It may be that they had had a similar experience and wanted to do the same as England and Wales. One cannot legislate for the future; one does not know.

Amendments No. 209ZB and 209ZC would have the effect of restricting the Lord Chancellor's power in subsection (4) to repeal the subsections relating to statutory review to a period of two years. After that period, the Lord Chancellor could make an order, subject to affirmative resolution, extending the power for a further two years. The amendments are restrictive and, if I may respectfully say so, superfluous. They place an unnecessary burden on the parliamentary timetable by requiring the Lord Chancellor to seek parliamentary approval every two years in order to retain the power. If the intention behind the amendments is to introduce safeguards against any potential misuse of the power, they are clearly unnecessary.

Under the existing proposals, subsection (4) of Clause 98 would allow my noble and learned friend the Lord Chancellor to repeal statutory review if the order repealing it had been approved by both Houses. Therefore, the necessary safeguards are in place. It would also save parliamentary time to have an open-ended arrangement, rather than placing unnecessary restrictions on the ability of my noble and learned friend to exercise the power when he so chose.

The noble Lord, Lord Kingsland, asked some specific questions. He wanted figures for appeals on a point of law to the Immigration Appeal Tribunal. We do not have those figures; the figures do not distinguish between points of law and points of fact. I can, however, give the Committee certain figures. I have given them in part already, but, to be complete, I can tell the Committee that, of the total applications against refusal of leave, 12 per cent were granted, and 88 per cent refused. Of the cases that go on to full hearings, 70 per cent were allowed and 20 per cent dismissed. That is inevitable, given that it is the stronger cases that go on to the IAT. Under statutory review, such cases would, in all likelihood, be referred back to the IAT for hearing.

I have dealt with Clause 89(2).

6.30 p.m.

Lord Kingsland

The Minister says that she has dealt with Clause 89(2). I asked her about the scope of the expression "error of law". Can I assume that it is shorthand for the full portfolio of judicial review remedies?

Baroness Scotland of Asthal

I feel like saying that "error of law" means what "error of law" means in case law. It will include the perverse finding of facts, as I described, and cases in which the court has got it wrong.

Lord Avebury

Do the figures that the Minister has just given include withdrawals—cases in which the Home Office has settled the case to the satisfaction of the applicant—and cases that have succeeded on renewal or at the Court of Appeal?

Baroness Scotland of Asthal

I am not clear on the precise way in which the figures are made up. Other than giving the noble Lord the broad outline, I cannot say whether withdrawals, for example, are included in the appeals that have succeeded. They may not be included; they may be in addition to those cases. I do not know, but I will undertake to clarify that, if we make such decisions. I can certainly write to the noble Lord.

I am helpfully told by the Box that "error of law" means "error of law".

Lord Kingsland

Strictly speaking, therefore, the expression might be said to exclude matters of natural justice, procedural fairness, proportionality and the whole range of remedies that go with the Human Rights Act 1998. Is that the Government's intention?

Baroness Scotland of Asthal

As I have said exhaustively, the Government's intention is that the matter should have the scrutiny of a High Court judge, as well as the scrutiny of a vice-president of the Immigration Appeals Tribunal, after having had the advantage of a hearing before an adjudicator. It is our intention that statutory review should cover cases that would, otherwise, have gone to judicial review of the application for appeal.

Lord Lucas

Can the Minister assure the Committee that the 12 per cent of people whose appeal succeeds would be as well treated under the new legislation as they are under current legislation?

Baroness Scotland of Asthal

We hope that those who have valid claims will have a proper opportunity to advance those claims and have them reviewed and heard. I cannot, of course, say whether the figure will be the same in the future. It might be 12, 18, 20 or just 1 per cent, but those who have valid appeals will have a proper opportunity to have their case heard.

Lord Goodhart

I am sorry to intervene again, but I must follow up what the noble Lord, Lord Kingsland, said. It is normal practice that, say, the Court of Appeal, when deciding whether to give leave to appeal, will make its decision not on the basis that the court below made an error of law but on the basis that the legal issue involved is sufficiently important to justify it being reconsidered at an appellate level. Where, in that case, can we say that there is an error of law that can be used as a basis of a decision to grant leave?

Baroness Scotland of Asthal

I do not know how long the noble Lord wants me to take in responding to him; I can certainly write to him. I could give a lengthy jurist's answer, but I dare say that we would be here for another half an hour. If I may, I shall further explore and elucidate my explanation of how we construe the phrase "error of law", and I shall send that explanation to members of the Committee who have participated in our debate.

Lord Lucas

Will the Minister send us some information on the reasons for the 12 per cent figure for those who succeed? What, in the vice-president's consideration, has gone wrong? On what basis are the appeals granted? If we had that information, we could discover whether such appeals would come through the new system or would not have an avenue.

Baroness Scotland of Asthal

I can undertake to give members of the Committee the advantage of the information that is available at the moment. It may be difficult to divine the precise nature of every species of appeal. I can see what can be done to identify the species of judicial review that have succeeded to date. I do not know, however, whether I will be able to do that within the boundaries of what is reasonable. I shall do what I can in that regard.

If the Committee will permit me to move on, I shall answer some of the earlier questions. It was suggested that adjudicators might not all be legally qualified; in fact, adjudicators are appointed if they have such legal or other experience as appears to my noble and learned friend the Lord Chancellor to make them suited to appointment. Most adjudicators have seven years' general qualifications, as set out in the Courts and Legal Services Act 1990. Those who do not will have other relevant experience. For instance, if they have practised extensively in that area of law in another jurisdiction—South Africa or elsewhere—that experience is among the things that my noble and learned friend is entitled to take into account.

The adjudicators who deal with the matter are experienced, and they have the requisite legal knowledge. They can do the job very well. Members of the Committee who rightly praised the adjudicators, when we debated the issue last week, were right to do so. They are of high quality and do a good job.

I hope that I have now answered all the points raised by the Committee. If, by some mischance, I have not responded on a particular matter, I will, of course, write. I ask the noble Lord to withdraw the amendment.

Lord Joffe

I have one question to ask the Minister. She has not dealt with it, and it is important to my response. Will future appellants, finding themselves in the position of the Turk who was granted leave to appeal on the grounds of fact, have a remedy under the Government's proposals?

Baroness Scotland of Asthal

I have answered that question twice, but I am happy to do so again. Our construction is that if the decision amounted to a perverse judgment on the facts, it would be capable of being appealed as a point of law to the IAT.

Lord Joffe

I am indebted to the Minister for that reply and for the patient and courteous way in which she has dealt with the amendment, which has taken up so much of the Committee's time. I am indebted to the noble Lord, Lord Judd, for correctly interpreting my comment on apartheid South Africa. I am not for a moment suggesting that one could in any way compare the situation in the United Kingdom with the one in that country at that time. In essence I said that, as evidenced by what happened in South Africa, there is a danger in seeking solutions to threats, real or conceived, by responding by removing the rights of selected groups of society.

I will leave time to consider the Minister's response to the amendment and to seek to align her clear statement on the concern with justice for all with the range of actions being taken by the Government in withdrawing asylum seekers' rights. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 207B not moved.]

Lord Filkin moved Amendment No. 208: Page 47, line 27, after "Court" insert "or, in Scotland, to the Court of Session

On Question, amendment agreed to.

[Amendments Nos. 208A and 208B not moved.]

Lord Filkin moved Amendment No. 209: Page 47, line 34, after "if" insert ", in an application to the High Court,

The noble Lord said: I beg to move.

Baroness Carnegy of Lour

In view of Amendment No. 208, surely Amendment No. 209 should also include the Court of Session.

Lord Filkin

I take note of the noble Baroness's good question, which follows a theme of appropriate questioning. I would appreciate it if she would accept a written note from me subsequently.

On Question, amendment agreed to.

[Amendments Nos. 209ZA to 209ZC not moved.]

Clause 89, as amended, agreed to.

Clause 90 [Decision]:

Lord Filkin moved Amendment No. 209A: Page 48, line 15, leave out from "only" to end of line 17 and insert "the circumstances appertaining at the time of the decision to refuse.

On Question, amendment agreed to.

Clause 90, as amended, agreed to.

Clause 91 agreed to.

Clause 92 [Pending appeal]:

Lord Filkin moved Amendment No. 209B: Page 48, line 42, at end insert "or an application under section 89(2)

On Question, amendment agreed to.

6.45 p.m.

Lord Avebury moved Amendment No. 209BA: Page 49, line 10, leave out subsection (5).

The noble Lord said: We are not sure whether the clause represents any substantive change to the 1999 Act. The Explanatory Notes say that it is merely a re-enactment of Section 58 of that Act, but paragraph 3 of Schedule 4, which deals with the determination of appeals, makes no reference to the range of circumstances mentioned in subsection (5). Where an appeal is made against refusal of leave to enter, refusal of a certificate of entitlement under Clause 10—by which a person has a right of abode—refusal of variation of leave to enter or remain when the person has no existing leave, or revocation of indefinite leave to remain, and the Secretary of State has issued a deportation order against the person, under that provision the appeal is to be treated as determined. In other words, the person lodges an appeal that would have been heard but for this subsection, but the Secretary of State cuts it off by making a deportation order.

Under paragraph 24(2) of Schedule 4 to the 1999 Act, an adjudicator must dismiss an appeal against refusal of entry clearance only if he is satisfied that a deportation order was in force against the appellant at the time. That is sensible and we agree with it. I presume that under Clause 92 such a case would not even reach the adjudicator. We have no objection to that if it is simply a question of preventing such appeals entering adjudicators' lists, and thus saving time and money.

But the clause extends the automatic determination of appeals following the making of a deportation order to the other circumstances I mentioned. At present, the Secretary of State cannot sign a deportation order under the Immigration Act 1971 until a person has exhausted appeal rights against the notice of decision to deport, by virtue of Section 63(2) of the 1999 Act. That provision is repealed by Schedule 9, but it is replaced by Clause 70(2)(j). The right to appeal against deportation orders is therefore not affected by Clause 92.

The Minister makes a decision under one of the headings in Clause 70, and while the person still has a right of appeal, the Minister decides to make a deportation order. The person appeals against that order, and the Minister cannot then sign it. This raises a substantive point. Does the first appeal go into cold storage while the appeal against deportation is considered, or is the substance of the first appeal considered as part of the deportation hearing? Perhaps the Minister would give some further explanation of how that works, and in what circumstances a deportation order might be signed while an appeal is pending.

In particular, we are concerned about circumstances already discussed of the revocation under Clause 70(2)(f) of a person's indefinite leave to remain under Clause 65. The Minister did not explain how the power would be used in relation to a person who had technically availed himself of the protection of his country of nationality, by going back on a short visit with a view to making inquiries about whether it would be safe for him to return permanently.

On the previous occasion I mentioned the example of Bahrain, where the Amir, now King, has permitted exiles to return, abolished the state security courts, and released political prisoners. Many Bahraini exiles living in London wanted to go back for a few weeks, to discuss the new situation with friends and to assess the risk that ex gratia concessions that are not protected by a vigilant parliament or a tradition of adherence to the rule of law might subsequently be put into reverse.

What the Government are saying to anybody facing a similar problem in the future is, "If you go back on a trial basis, not only can we take away your indefinite leave to remain but we can also halt your appeal against that decision by issuing a notice of deportation against you, if we think that would be conducive to the public good". No doubt the Government will say that the power would not be used arbitrarily against a person in the circumstances described, but the existence of this subsection on the statute book could be a deterrent to the normal conduct of exiles who want to consider returning to their country when the conditions that led them to fear persecution are relaxed. I beg to move.

The Deputy Chairman of Committees (Lord Elton)

I have to tell the Committee that if the amendment is agreed to, I shall be unable to call Amendment No. 209C.

Lord Kingsland

I have two questions for the Minister. Why are the five types of appeal in Clause 70(2)(a),(c),(d),(e) and (f)—those amended by government Amendment No. 209C—chosen as being treated as finally determined by the issuing of a deportation order rather than any of the other types of appeal?

Secondly, the Explanatory Notes state that Clause 92 re-enacts Section 58 of the 1999 Act. However, Section 58(10) of the 1999 Act, which makes similar provision to Clause 92(5), states: A pending appeal under section 61 is to be treated as abandoned if a deportation order is made against the appellant". But Clause 92(5) uses the words "finally determined" rather than the word "abandoned".

There are therefore two differences between the 1999 Act and what is in the Bill, which I invite the Minister to explain. First, what is the difference between "abandoned", the term used in the 1999 Act, and "finally determined", the term used in the clause?

Secondly, Section 61 of the 1999 Act, referred to in Section 58(10) of that Act, mentions only appeals against variations of limited leave to enter or remain in the United Kingdom. The types of appeal covered by subsection (5) of Clause 92 appear to go wider than that. They include, for example, an appeal against the revocation of the indefinite leave to remain of a refugee and his dependants under Clause 65(3), which is both covered by Clause 70(2)(f) and which is also included in the list of appeals to be covered by Clause 92(5).

I hope that the Minister will be able to clarify the situation; but I should understand if he would prefer to reflect over the summer adjournment and return to it at a later stage.

Lord Filkin

Clause 92 defines when an appeal is pending. That is an important determination, given that it usually prevents removal through a deportation order. The aim of the one-stop appeal system, as we have discussed at length today, is to do away with multiple appeals. Amendment No. 209BA would undermine that aim.

We see no benefit to the appellant, other than delay, in allowing an old appeal to proceed after a deportation order is issued. The reason for that is that all relevant matters can be considered in the appeal against the decision to make the deportation order. It may help if I re-emphasise that because of the right of appeal in all cases against a decision to make a deportation order, an appeal against such a decision is not covered by Clause 92(5), so no one is left with the right of appeal by virtue of this subsection.

The issues put forward in any appeal against another decision which is deemed to be finally determined can be taken up in the appeal against the decision to make the deportation order. I believe that that is the assurance sought by the noble Lord, Lord Avebury, and I well understand why. For those reasons, Amendment No. 209B would create a duplication of effort for the Immigration Appellate Authority and there is a right of appeal against a decision to make a deportation order. That order supersedes the original immigration decision and any substantive issues that were raised in the original appeal can be considered in the appeal against deportation.

The noble Lord, Lord Kingsland, raised a number of important and challenging questions; for example, the distinction between "abandoned" and "finally determined". That is merely the way the draftsman has expressed the position. That is probably the easy question to answer out of his seven difficult ones before breakfast. I shall accept his kind invitation to write to him with the ability of giving more time and consideration to the detail.

The noble Lord, Lord Avebury, mentioned the Bahrain examples of people returning. I would like to look at what I said in reply earlier to see whether there is any incongruity between that and the points he has raised. I shall write to him accordingly one way or the other.

With those assurances, I hope that the noble Lord will agree to withdraw his amendment.

Lord Avebury

I am grateful to the noble Lord, in particular for the assurance that the substantive matters which were covered by the original appeal can be dealt with on the appeal against a deportation order. With regard to the deterrent effect on exiles going back for trial periods to their countries of origin, I am sure that we can deal with that in correspondence or when we meet during the summer Recess, as no doubt we will. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin moved Amendment No. 209C: Page 49, line 10, leave out "70(1)(a), (c)," and insert "70(2)(a), (c), (d),

On Question, amendment agreed to.

[Amendment No. 209D not moved.]

Clause 92, as amended, agreed to.

Clause 93 [Notice of immigration decision]:

[Amendments Nos. 210 and 210ZA not moved.]

Clause 93 agreed to.

Clause 94 [Rules]:

Lord Filkin moved Amendment No. 210A: Page 49, line 26, leave out "89" and insert "89(1)

On Question, amendment agreed to.

[Amendments Nos. 211 to 217A not moved.]

Clause 94, as amended, agreed to.

Clauses 95 and 96 agreed to.

Clause 97 [Grants]:

Lord Avebury moved Amendment No. 217B: Page 51, line 21, at end insert— () advice or assistance and representation for those with a right to apply for bail;

The noble Lord said: I shall detain the Committee only for a moment with this amendment. Its purpose is to ensure that voluntary agencies which are eligible have grants to give advice and assistance to those who have a right to bail. In Section 55 of the 1999 Act, the Secretary of State had a power to make grants to any voluntary organisation providing advice or assistance for detained persons under Part III and that included the help with applications for bail under Section 53.

We have a problem in that more than half the people being detained do not manage to make applications for bail. A study of 88 cases made by Bail for Immigration Detainees between 1st August and 31st October showed that 29 made applications and were represented; 15 were not pursued because there were no sureties; and 44, representing half the sample, were not pursued and were presumably deemed to have failed the merits test if they ever reached a legal representative. However, we do not have a sufficiently full analysis to show that that was the reason for the outcome in every case.

We know from BID that many cases succeed outside the parameters laid down by the Legal Services Commission. I suggest that means that the merits test is not properly framed for the purpose, or that there needs to be support for the organisations dealing with bail which do not presently qualify.

There is always a temptation, because of the volume of work involved in the appeals, to think of bail as of lesser importance. Practitioners are asked to make a judgment, where they consider the prospects of success to be less than 50 per cent, to take on bail only where there are human rights implications or the public interest is involved. We therefore believe that more advice is needed for people who wish to apply for bail and do not at present have an opportunity for doing so. We hope that the Minister will agree that it is important that grants should be available for this purpose. I beg to move.

7 p.m.

Lord Bassam of Brighton

As grateful as we are to the noble Lord for tabling the amendment, its effect would be that organisations such as the Immigration Advisory Service, the Refugee Legal Centre and other not-for-profit organisations would be able to apply for grant-in-aid funding from the Home Office in order to provide advice, assistance and representation at all immigration and asylum bail hearings. That would include those where the subject had absolutely no right of appeal.

Clause 97 is intended simply to enable the existing provisions and arrangements for funding currently made under Section 81 of the 1999 Act to continue. The clause continues the range of provision. The organisations funded under Section 81 of the 1999 Act can already provide such advice, assistance and representation at immigration and asylum bail hearings as necessary, where the application for hail is linked to an appeal.

It is also worth pointing out that the Legal Services Commission already provides for representation at bail hearings, including situations where there is no right of appeal. So far as we are concerned, there is no reason why Clause 97 should seek to duplicate that. Thus, what the noble Lord seeks is, in effect, already in place.

We see no good reason for disturbing arrangements which are working perfectly well, ensuring that the range of advice, information and representation is in place.

Lord Avebury

The noble Lord is mistaken in thinking that the present arrangements work properly. If he took the trouble to speak to some of the agencies that are trying to find sureties for people with a legitimate right to apply for bail, he would know that one of the principal reasons why bail is not granted is the difficulty involved in bringing forward sureties who know the applicant and who are available at the court in which the application is to be made.

Lord Bassam of Brighton

We shall have a long, hot summer discussing the details of this legislation. I do not make any promises or commitments, but of course if the noble Lord is unhappy with certain aspects of this part of the Bill, no doubt he shall have an opportunity within the parameters of our discussions to air his concerns, in particular with regard to sureties.

Lord Avebury

I am extremely grateful to the Minister. I gladly take up his offer and I look forward to discussing these points over the summer. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 218 not moved.]

Clause 97 agreed to.

Clause 98 [Regulations, &c.]:

[Amendment No. 219 not moved.]

Clause 98 agreed to.

Clause 99 [Interpretation]:

Lord Filkin moved Amendment No. 219A: Page 52, line 8, at end insert "and "Convention rights" shall be construed in accordance with section 1 of that Act,

On Question, amendment agreed to.

Clause 99, as amended, agreed to.

Clause 100 agreed to.

Schedule 6 agreed to.

Schedule 7 [Immigration and Asylum Appeals: Consequential Amendments]:

Lord Filkin moved Amendment No. 219B: Page 95, line 2, leave out from "only" to end of line 5 and insert "the circumstances appertaining at the time of the decision to refuse."

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 101 agreed to.

Lord Filkin moved Amendment No. 220: After Clause 101, insert the following new clause—

"SPECIAL IMMIGRATION APPEALS COMMISSION: COMMUNITY LEGAL SERVICE

In paragraph 2(1) of Schedule 2 to the Access to Justice Act 1999 (c. 22) (Community Legal Service: courts and tribunals in which advocacy may be funded) the following shall be inserted after paragraph (h) (and before the word "or" which appears immediately after that paragraph)—

"(ha) the Special Immigration Appeals Commission,"."

On Question, amendment agreed to.

Remaining clauses and schedules agreed to.

Lord Filkin

I apologise for interrupting the proceedings, but before we conclude the Committee stage of the Bill, I should like to thank all noble Lords who have taken part in our seven days of deliberations. I thank in particular the Opposition Front Benches for their strong challenges. We look forward to considering those over the summer.

I should also like to thank the Bill manager who, unusually, is moving on to take up a new role. I shall not have an opportunity to thank him at the end of Third Reading.

House resumed: Bill reported with amendments.