HL Deb 07 June 2004 vol 662 cc30-53

(1) Subsection (2) applies where the appropriate court has made an order under section 103A(1), or a reference under section 103C(1), on the application of an appellant under section 103A.

(2) The appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22).

(3) Subsection (4)"

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 47: Page 15, line 42, leave out from beginning to end of line 36 on page 16.

The noble Lord said: My Lords, I was expecting a slightly more substantial speech from the Minister. However, I am happy that he should leave that until he responds to this amendment, which is grouped with Amendment No. 46A.

We do not object to Amendment No. 46A and have not sought to do so; we welcome it so far as it goes. It will undoubtedly fill a lacuna if it gives the court which hears an application for an order to reconsider the power to order the payment of the costs of that application. The problem is that Amendment No. 46A does not go nearly far enough.

Once the High Court has ordered reconsideration, it seems plain to us that legal aid should be granted for that reconsideration. The High Court will not order reconsideration unless there is at least an arguable case that there has been an error of law; nor will it order reconsideration if it is apparent that that error of law makes no difference because the case is hopeless on the basis of the facts or on some other legal issue

However, we believe that it is essential that the appellant's lawyer should know that if the case is reconsidered, he or she will receive legal aid for appearing in the case. Of course, if the lawyer in some way misconducted himself or herself by misleading the court and concealing material facts, he or she would be deprived of the right to legal aid anyway. But the Government are suggesting, basically, the extension of no win/no fee litigation to asylum and immigration cases.

No win/no fee funding may be here to stay for civil actions for damages—that is an entirely different matter—but it is completely inappropriate for litigation of this kind between an immigrant and the state, with terrible potential damage to the immigrant if he or she is wrongly sent home. I was horrified by the noble and learned Lord the Lord Chancellor's suggestion in Committee that "success fees"—that is, an uprating of the fees that would be otherwise due—could be paid where a decision is overturned on reconsideration. If an application is strong enough to justify an order for reconsideration, the appellant is entitled as a matter of justice to have the case presented by a lawyer who has been paid to do the job.

Amendments Nos. 47, 48, 48A, 49 and 50 tackle this issue in two different ways: one way is through Amendment No. 47; the other way is through the remainder of the amendments. Amendment No. 47 seeks to remove the whole of the new Section 103D of the 2002 Act. Its purpose is to ensure that legal aid for applications and reconsiderations should be provided in the normal way, with none of the special restrictions imposed by the Bill.

Amendment No. 48 is something of a compromise. It would retain new Section 103D but require the tribunal to make an order for legal aid unless it is satisfied that there were no reasonable grounds for making the application. It would eliminate all the issues we discussed in Committee about near misses. A lawyer with reasonable grounds for making the application would not lose his or her fees on the grounds that the miss was not quite near enough.

Amendment No. 48A would require the tribunal to give reasons for refusing legal aid. If those reasons were irrational, the decision could be reversed. Amendments Nos. 49 and 50 back up Amendment No. 48. They would remove the provisions for payment by results.

We believe that the test—and the only test—for the grant of legal aid should be whether there are reasonable grounds for seeking reconsideration. If there are reasonable grounds, it would be wrong to deprive the appellant's lawyers of the fees because they are unsuccessful when the reconsideration takes place.

I find the attitude of the Government to legal aid in these cases extraordinary. They have failed to take into account measures that have already been put in place to curb the abuse of legal aid, which I recognise has happened in asylum cases. Such measures include the fact that decisions on appeal funding have been taken in-house by the Legal Services Commission since last April; the fact that nearly 100 poor-quality firms have had their Legal Services Commission contracts terminated; and the fact that a compulsory accreditation scheme of the Law Society will come into force in April of next year. Those measures are surely sufficient to justify treating legal aid for leave of appeal to the AIT in the same way as any other cases and for hearings for reconsideration.

The Government have not so far said that criminal defence lawyers will be paid only in cases where their clients are acquitted, yet the wrongful refusal of asylum can have consequences even more damaging than a wrongful conviction for crime.

The way in which the Government have treated the right to legal aid in this case is plainly wrong and it needs fundamental alteration. I beg to move.

4.30 p.m.

Lord Clinton-Davis

My Lords, like the noble Lord, Lord Goodhart, I am deeply concerned about this issue. I am concerned about the principle to introduce, in due course, the no win, no fee arrangements. The noble Lord elaborated on that.

The Government have it in mind to replace the Legal Services Commission with the judiciary in determining whether costs should be ordered. The judge would so order only if he decided that a case was either successful or a near-miss. Solicitors are therefore bound to be unduly cautious in approaching such matters.

The system that is envisaged is likely to have deleterious effects. First, solicitors are likely to give up legal aid work in that field because they feel that they are unable to work at all, or properly, under the circumstances that are envisaged. Secondly, there is a by no means remote possibility of a conflict of interest between the lawyer, whose attitude is likely to be that he will act only if the application is almost certain to succeed, and the lay client, who will want the application to proceed if he has an arguable case. Why, therefore, should there not be representation in all arguable cases?

Unmeritorious cases should not be publicly funded. I entirely agree with that proposition. That, in summary, is the view of the Government. However, do the Government not recognise that effective filters already exist? First, there is the Legal Services Commission, which imposes cost assessment audits, Quality Mark audits and peer review, where firms undertake immigration work, which is publicly funded. Secondly, the Legal Services Commission, rather than the solicitor, determines at present whether the case has enough merit and whether an appeal to the Asylum and Immigration Tribunal should be publicly funded. Thirdly, from 2005, the accreditation system will apply to all lawyers who practise publicly funded work in such cases.

Complex issues of law and fact are the rule rather than the exception. To decide them, it is often desirable that the applicant should give evidence. Why should we find that unacceptable?

Many sound claims are too often refused at the initial stage, where Home Office decision-making is often found to be wanting. Representation at that stage is therefore often indispensable.

There is likely to be an increase in unrepresented applicants, however unmeritorious they may be, and the courts will be hopelessly overloaded. In such circumstances, the Government will incur, rather than save, costs. I therefore hope that my noble friend will think again about his propositions.

Lord Newton of Braintree

My Lords, I indicated earlier that when the Council on Tribunals looked at some of the proposals, though it concentrated on Ulster in particular, it was concerned by a number of points of detail. This is another of them.

I shall not attempt to speak with the eloquence of the noble Lord, Lord Clinton-Davis, with his much wider knowledge of the operations of the legal profession, but it seems to be a matter of layman's common sense that if public funding is to be dependent on the ultimate outcome, which is what appears to be envisaged, there must be a risk that lawyers will feel strongly discouraged from taking on cases that may be meritorious in the normal use of that term, but not 100 per cent certain of being meritorious. In the area of asylum and immigration, it is singularly open to question whether that is a proper path to follow.

Being a natural seeker after the middle way, of the two amendments moved by the noble Lord, Lord Goodhart, I think that I prefer his compromise amendments to his complete "throw out this bit of the Bill" amendment, but I hope that the Government will look again at the issue.

From our experience at the Council on Tribunals—as was touched on by the noble Lord, Lord Clinton-Davis—there is considerable evidence that suggests that the absence of legal representation can extend the time and complexity of the hearing and make it much more difficult to handle matters in a manageable way. Any former Member of Parliament will know from discussions in his surgery that many complainants, claimants or applicants often find it difficult to distinguish the points that really matter from those that are not necessarily essential to the issue. Legal representation really can improve the smoothness and efficiency of the working of arrangements of that kind. With the best will in the world, I hope that the Minister will be prepared to take another look at the matter.

The Lord Bishop of Newcastle

My Lords, I too wish to ask the Government to give further consideration to these matters. They are of concern to all those noble Lords who have spoken today. While I am pleased that the Government have amended their proposals to allow for costs to be paid out of the Community Legal Service fund, I would like some reassurances about how that is going to work out in practice, especially in cases involving children and families.

A no win, no fee approach puts children and families at risk from the unscrupulous or the faint-hearted, who may tell them that they do not have a strong enough case to take on, and that if they want to appeal, they must pay privately. It is worrying to find a child or a family being told to produce a significant sum. The Children's Society has experience of upfront payments of £200 being demanded from a child, to be produced in a short space of time, before a case would be taken on.

The Countess of Mar

My Lords, I am sorry to interrupt, but would the noble Lords on the Benches opposite mind confining their sub-committee to outside the Chamber? I am finding it difficult to hear what the right reverend Prelate is saying.

The Lord Bishop of Newcastle

My Lords, equally it is becoming difficult to find good legal representatives for children and families. We need to remember that the best protection against incompetence or unscrupulousness is a sufficiency of good representatives. I am not at all sure that these proposals will enable that.

My other concern is about a no-win/no-fee arrangement in this case. I am not aware of such a scheme operating in any other areas that are about fundamental human rights. That seems to be the basic point, which is why I fully support the amendment in the name of the noble Lord, Lord Goodhart.

Lord Avebury

My Lords, the right reverend Prelate is right. I do not think that any of us can produce an example where human rights are at stake and where a no-win/no-fee proposal has been made, let alone introduced. I wish to refer to the representations that we and perhaps other noble Lords have received from the Medical Foundation for the Care of Victims of Torture. It says:

Where torture has been alleged it cannot possibly be in the interests of justice to allow the decision to challenge a flawed Asylum and Immigration Tribunal (AIT) decision to rest on lawyers' financial interests in the success of the case. This will prejudice those of our patients whose representatives are less able to bear the financial risk of proceeding even where a legal error of law is clear. This is particularly relevant given the Medical Foundation's current experience that quality firms are closing their immigration departments due to the recently imposed financial constraints". The Medical Foundation has drawn our attention to two cases. I will give the Minister the references in case he wants to look them up. The first is Neutral Citation No: CO-2174–00, which was heard on 21 November 2000 before Sir Richard Tucker. The adjudicator had rejected the applicant's claim for asylum mainly on credibility grounds. Mr Justice Tucker, however, allowed the judicial review application saying that he did not agree with the counsel who appeared on behalf of the Secretary of State that the adjudicator's findings of fact were sustainable. In his view they were not and the case had to be reviewed and should be taken before the immigration tribunal. The claimant was later recognised as a refugee.

The second example is where a chairman of the tribunal determined an application for permission to appeal. The appeal number is HX/42009/2003, which took place on 8 December 2003. The chairman said: An adjudicator is entitled to use his own experience in assessing evidence, including how scars might be formed but not to set himself up as an expert". In that case a decision is still awaited, but it is not clear how an adjudicator would come to have the experience necessary to make a forensic judgment, nor the extent of that particular adjudicator's medical knowledge, although he was permitted to attack the Medical Foundation expert who had written the report before him for failing adequately to explain her conclusion.

The Medical Foundation says that it cannot predict whether those two cases would have been successful under the Bill's terms or how the courts would have made a decision on referring them back. It shows that no-win/no-fee is a gamble and that, although there are serious doubts about the way in which such cases were decided, no one has any idea whether the applicants would have had the right to pursue their claims if this system had been in operation.

With the Medical Foundation's experience and that of other agencies referred to, we are looking at a situation where the rights of asylum applicants who may have had the experience of torture will be seriously undermined. I am sure that your Lordships would not want that to happen.

4.45 p.m.

Baroness Carnegy of Lour

My Lords, as a Member of the House with no legal qualifications who has not been involved with the process, this seems to me a matter of simple common sense. I shall listen with great interest to what the Minister has to say if he does not accept the amendment's principle. The Law Society's case, which it put before many of your Lordships, was well made by the noble Lord, Lord Clinton-Davis. It seems common sense to me.

My noble friend Lord Newton from his experience of the Council on Tribunals made it clear that often an appeal is more complicated and takes longer if there is no lawyer involved. To have a situation where a lawyer may not dare to take on the case or may not want to because it seems too much of a gamble is a great mistake.

Lord Kingsland

My Lords, we have considerable sympathy with the general approach of the noble Lord, Lord Goodhart, in the amendments that he proposes, without necessarily agreeing with the specific approach that he takes in each case.

I have already indicated that there is a plain dissonance between the test for review that the Government have now adopted in the first amendment of the day and the criteria for furnishing legal aid in circumstances where someone meets it. That is a profound and inexplicable irrationality that goes to the heart of the Government's legal aid proposals.

Moreover, I share entirely the view of the noble Lord, Lord Goodhart, and many other noble Lords, that a conditional fee approach is wholly inappropriate to asylum cases.

I should say at the outset that I am opposed to conditional fees altogether. I said so consistently during the debates in your Lordships' House on the Access to Justice Act 1999. However, the objections to conditional fees are even more firmly based with regard to public law; and, in particular, the human rights aspects of public law; and, especially, in asylum cases involving human rights issues.

There are a number of reasons for that, some of which have already been canvassed by noble Lords. The first is that the outcome in asylum cases is particularly difficult to predict because of the central role that the issue of credibility plays. Yet a high degree of accuracy of prediction is vital for the operation of a successful conditional fee system.

Secondly, in a conditional fee system, the client insures himself against losing a case so as to reimburse the solicitor for his expenses in the event of losing. An asylum seeker will be in no position to do that, but who will pay the insurance companies if they are not paid by the asylum seeker?

Perhaps the most fundamental objection of all is this: conditional fees are not appropriate to human rights cases, which require, as the judges have repeatedly reminded us in the High Court and above, the most anxious scrutiny. That, indeed, is the view taken to human rights issues with respect to every other public law matter in the country. In this respect, I find the Government's disposition particularly bewildering. They introduced the Human Rights Act to make Strasbourg remedies available in English law, in English courts; yet they are not now prepared to live up to these new responsibilities, which they imposed on themselves, by seeing them properly reflected in the legal aid system.

Lord Filkin

My Lords, in responding to amendments moved by the noble Lord, Lord Goodhart, I shall speak—and not before time—to government Amendments Nos. 46A, 47A, 48B, 49A, 50A and 58A. In doing so, I shall also respond to Amendments Nos. 47, 48, 48A, 49 and 50.

Amendments Nos. 47, 48, 48A, 49 and 50 are concerned with the provisions for new legal aid arrangements for the review and reconsideration process. Essentially, we are considering how to craft a new system that allows cases in which there are good grounds for there being a fault of law by the AIT to be properly considered by the High Court. We are not trying to reopen the situation, which I hope the House recognises took place, in which a substantial number of judicial review cases were brought on asylum matters to the courts without substantial merits, with the predominant aim of gaining time so that the asylum applicant whose case had not been found to have merit could defer his removal from this country.

We should not fool ourselves: this is not the dilemma with which we in a liberal society are trying to grapple. We want applicants in whose cases an error of law has been made to have an opportunity for redress in the higher courts; we have listened to the House in that respect. However, we do not want to reopen a situation in which there is an incentive for the applicant to continue the case, since it is in his interest to string out the process for as long as he possibly can, as that will delay or perhaps even avoid the date when he can be removed. We want as well to avoid the situation in which the lawyer himself is incentivised to take cases without merit because he will suffer no pain as a consequence of doing so.

While there have been cases that should have gone to judicial review—and it would be foolish of us not to recognise that—there have been very many cases without merit taken to judicial review, with considerable cost to the taxpayer and delay to the system. That has created the impression known to traffickers and others that when they get here the legal system in Britain—which is so good—means that they can string out their process and not be removed from the country. Therefore we are facing the question how we as a society, a Government and a House, can balance those two issues.

Let me explain why we believe that we have got it right.

Lord Avebury

My Lords, does the Minister agree that, considering the mechanisms that have been discussed by the noble Lord, Lord Clinton-Davis, and particularly the fact that the LSC will now have the responsibility of determining whether a case has sufficient merit, the kinds of abuse that have occurred in the past will still continue if legal aid is provided?

Lord Filkin

My Lords, the noble Lord, Lord Avebury, may have thought that I was concluding; I was not concluding but only beginning my response. I hope that we shall have an opportunity to address that point.

What we have done is to introduce an enabling power in new Section 103D to make regulations for a new legal aid scheme for the High Court review process and reconsideration by the tribunal. This will ensure that we focus legal aid on the most meritorious cases. Instead of the Legal Services Commission taking the funding decision, the power will be given to the judiciary to decide if legal aid should be paid in these proceedings. We are effectively asking lawyers to share the risk with the taxpayer when deciding whether an appellant should proceed with a review application. We believe that that will lead to lawyers giving a more rigorous examination to the prospects of a case succeeding. We recognise that good lawyers do that already, but that has not been universally the situation in our experience of asylum matters over recent years. This is not an attempt to remove those cases from the scope of legal aid, but a genuine drive to ensure that the focus of public funding is on deserving cases.

Amendments Nos. 47, 48, 48A, 49 and 50 would reverse that aim, and would mean that it would be easier to get legal aid for reconsideration proceedings than the original appeal, where the appellant would at least have to satisfy the merits test for legal aid applied by the Legal Services Commission.

As the Lord Chancellor said in Committee, the regulations constructed under the power will set out the detail of the scheme. Broadly speaking, we envisage that the tribunal will order legal aid to be paid in the following cases: in a case which has been successful and the original appeal decision has been reversed, or in a case which the judge has decided was a near miss, which was meritorious and could have succeeded but did not. In such a case it can decide that it is right that there is a payment.

I am grateful to the noble Lord, Lord Clinton-Davis, for acknowledging that unmeritorious cases should not be publicly funded. A number of noble Lords who have spoken have been concerned about whether the provision might lead to lawyers ceasing to be prepared to take cases to the High Court in these circumstances. That is a perfectly proper and right question. The thrust is that if lawyers get paid only when they succeed—and it is not perfectly possible to predict when they will succeed, for obvious reasons—they will be under a strong disincentive to take cases.

For those reasons—and with no hint of feeling that that is anything other than proper—we believe that a success fee should be paid and that it should be substantial. I shall not go into the exact arithmetic, because we have not come to a conclusion on that. What we want is a situation in which good immigration and asylum lawyers would know, in taking cases over a period of time, that if they exercise proper professional judgment in the interest of justice and their client—

Lord Clinton-Davis

My Lords, I cannot see why the Legal Services Commission should not apply the usual standards which are applied in considering particular circumstances. After all, at the present time the Legal Services Commission determines whether the applicant, plaintiff or defendant has a good legal case, and it can refuse or acknowledge that the matter ought to proceed. What is the essential difference between that situation and the one that applies in cases at the present time?

Lord Filkin

My Lords, I give an undertaking to the House that when I have finished what I have to say and if I have not addressed certain points, I shall be grateful to receive interventions. However, I hope that the House will have patience with me until we get to that point of failure rather than assuming that I am failing on it already.

I was seeking to explain why a success fee achieved the right balance in view of the fact that a lawyer would take on a level of risk on an individual case. The noble Lord, Lord Kingsland, is right that it is not like a conditional fee agreement, which involves an insurable risk, and that it is unlikely that the appellant himself would be in a position to reimburse the lawyer in the vast majority of such situations. It stands to reason that that is the situation.

We shall discuss the level of the success fee with the professions. Essentially we want to discuss what is likely to be the level of uplift on a fee that would ensure an adequate supply of good lawyers prepared to bring cases to review in this way. That is a consultation process that we cannot currently have, but it will be fundamental to crafting this accurately to get the balance right so that good lawyers will make judgments that they will take cases. They may lose on some but they will know that if they exercise good professional judgment they will get adequately remunerated over a period of time. We do not want a situation such as the current one, where bad lawyers will not be in any way limited from taking forward unmeritorious cases.

5 p.m.

I turn to government Amendment No. 46A, in conjunction with government Amendments Nos. 47A. 48B, 49A and 50A. This enables regulations to be made under Section 103D to make provision for the High Court to order legal aid to be paid. In Committee, the noble and learned Lord the Lord Chancellor outlined this component of the proposals for new legal aid arrangements.

The High Court will also have the power to order the costs of an application under Section 103A to be paid if it orders the tribunal to reconsider its decision on an appeal or if it refers a case to the Court of Appeal. This proposal is important so that we can design the scheme flexibly. For example, if a case raises a question of law of such great importance that the High Court refers it to the Court of Appeal, it is appropriate that the High Court should have the power to order the costs of the review application to be paid. Government Amendments Nos. 47A, 48B, 49A and 50A are consequential to government Amendment No. 46A.

Government Amendment No. 58A makes the regulation-making power for new legal aid arrangements in Section 103D subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee recommended that the regulation-making power should be subject to affirmative resolution and in Committee the noble and learned Lord the Lord Chancellor said that he would bring forward an amendment to this effect.

I now turn to the question of the noble Lord, Lord Goodhart, about legal aid being paid only at reconsideration. The merits of a case will often come to light only when the case is fully tested and explored by the tribunal. The panel at the reconsideration will be best placed to order legal aid if a successful or near-miss application has been made. The High Court judge can order payment in exceptional circumstances.

The noble Lord, Lord Avebury, raised questions about the Medical Foundation cases. We are asking lawyers to focus on the fundamentals of cases and whether errors of law have affected the outcome of the cases. If they consider that a genuine case should succeed, they will be given legal aid if the case succeeds or is a near miss. As I signalled, the uplift mechanism will not deter them from taking cases that they consider have merit.

The noble Lord also spoke about no win, no fee costs being unprecedented for cases affecting human rights. It is already the position that conditional fee agreements are used in relation to judicial review proceedings, which frequently include issues of human rights. I should emphasise that we are talking about public funding only, not cases that are privately funded.

The noble Lord, Lord Clinton-Davis, and other noble Lords raised the question of why the LSC's applied merits test is not good enough. Any LSC-applied merits test will delay the review and reconsideration procedure. The test applied beforehand is hypothetical. We consider it entirely justifiable for the test to be applied by judges at the conclusion of cases. Judges are best placed to make a proper judgment on whether cases had merit because they succeeded or because they were close enough, or that there were other circumstances that they judge appropriate.

We are facing a real problem about how we get meritorious cases brought forward without over-incentivising the system so that cases without merit continue to be brought to appeal. I think that the way that we have crafted this after consultations is right, workable and will meet the test of justice.

Lord Clinton-Davis

My Lords, will my noble friend give way?

The Countess of Mar

My Lords, may I remind the noble Lord that the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, in rules of debate on Report says: On report no Member may speak more than once to an amendment". That also applies with questions to the Minister.

Lord Clinton-Davis

My Lords, I am not speaking, I am intervening. I think you can do that.

Lord Bassam of Brighton

My Lords, I remind the House that interventions should be only for elucidation and that once the Minister is on his feet, he should be responding to points. The only person who can speak thereafter is the mover of an amendment.

Lord Mackay of Clashfern

My Lords, I am going to respond to the noble Lord's invitation to ask if there is a matter that does not appear to be covered.

As I understand Amendment No. 46A, these reconsideration of legal aid provisions apply only where the court has made an order of recommitment to the tribunal or to a higher court. It does not apply where the application has failed. It seems to apply only if the application for reconsideration has succeeded. Is that right?

Lord Filkin

Yes, my Lords. The noble and learned Lord is correct.

Lord Goodhart

My Lords, I regard the Government's response to our amendments as deeply disappointing. I am also seriously concerned about some of the human rights implications. The Government are being illogical. They are not proposing to modify the present rules about the grant of legal aid for the first hearing before the tribunal. That is something that has undoubtedly been abused at certain times in the past, but I think that the Government recognise that, where a merits test is satisfied, it is necessary to grant legal aid for the first hearing before the tribunal. Of course, the number of first hearings is far larger than the number of appeals so that is the level at which the real cost is incurred and there will be no real saving on that from any of these amendments.

The Government are proposing to withdraw legal aid from only some cases of the making of an application and from cases of reconsidering following the making of an application where the application has been granted. We on these Benches are prepared to accept an amendment in a form that would mean that legal aid can legitimately be withheld in cases where there are no reasonable grounds for an application. What we find completely unacceptable is that legal aid should be withheld in cases were there is a reasonable ground for application, and not only withheld, but withheld retrospectively, at the end of the case, when the lawyer who has taken on the case has no guarantee whether that case is going to be successful.

The Minister referred to the need for more rigorous examination by lawyers. We are now facing a situation where a lawyer will have to say to himself or herself, "This case has a reasonable chance of success but it is not certain. I simply cannot afford to take that case without a guarantee of payment". Success fees are wholly inappropriate in order to deal with this situation. Success fees are about cases involving money. I perhaps go a little further than the noble Lord, Lord Kingsland, but I would be prepared to accept success fees in cases where money is at issue. In those cases a lawyer can, and indeed should, say, "You have a 50:50 or perhaps even a 55:45 chance of success but it will cost you far more money if you lose than you will get from it if you gain. It is not therefore in your interest, or in mine, to start these proceedings. Therefore, I am not going to take this case, which in the old days I would have taken because the test was whether it had a better than even chance of success". That sort of financial cost-benefit analysis is wholly inappropriate for asylum cases, as of course it would be in criminal cases.

I am not suggesting that one can equate asylum cases with criminal cases completely. In criminal cases, it has long been accepted, quite rightly, that a defendant in a criminal case is entitled to be defended by a lawyer who is paid through legal aid and can expect the lawyer to put forward a defence which is seen to have no reasonable chance of success whatever. We do not go as far as that in asylum cases. We are simply saying that an asylum seeker—someone who is an appellant in a case of this kind, seeking reconsideration—should be entitled to have legal aid except in cases where there is no reasonable chance of success.

This is an issue about which I and my noble friends feel very strongly. So far as today is concerned, we are in a bit of a practical quandary because the noble Lord, Lord Kingsland, has made it clear that he is not at present in a position to support our amendments fully. It certainly seems to us, therefore, that the appropriate thing to do today is to ask the leave of the House to withdraw the amendment which I have moved in order to give an opportunity for further consideration of the matter in the hope of achieving a consensus. However, we would in those circumstances wish to bring this back. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin moved Amendment No. 47A: Page 16, line 4, leave out from "of" to end of line 5 and insert "that Fund

On Question, amendment agreed to.

[Amendments Nos. 48 and 48A not moved.]

Lord Filkin moved Amendment No. 48B: Page 16, leave out line 7 and insert "powers in subsections (2) and (4)

On Question, amendment agreed to.

[Amendment No. 49 not moved.]

Lord Filkin moved Amendment No. 49A: Page 16, line 10, leave out from "to" to end of line 12 and insert "the result of the reconsideration or of the reference under section 103C);

On Question, amendment agreed to.

[Amendment No. 50 not moved.]

Lord Filkin moved Amendment No. 50A: Page 16, line 32, leave out first "the" and insert "a

On Question, amendment agreed to.

Lord Filkin moved Amendment No. 50B: Page 16, line 38, after "appeal" insert "under section 82 or 83

The noble Lord said: My Lords, in moving Amendment No. 50B I shall speak also to Amendments Nos. 57B and 60. We are not moving technical Amendments Nos. 57C and 59A. My noble friend Lady Scotland wrote to the noble Lord, Lord McNally, and the noble Baroness, Lady Anelay, on 25 May indicating that the Government would be seeking to bring forward a small number of new policy amendments to the Bill. Amendments Nos. 57C and 59A are not being moved pending these new amendments.

Government Amendment No. 50B clarifies that Section 103E applies to a decision of the tribunal on an appeal under Sections 82 or 83. This amendment is a tidying amendment and simply brings the wording in Section 103E into line with the wording in Section 103A.

Government Amendment No. 57B ensures that all of Section 103A through to Section 103E applies to appeals against deprivation of citizenship. It was always the Government's intention that all sections should apply to deprivation appeals and the amendment simply corrects a drafting oversight.

Finally, I turn to government Amendment No. 60. This amendment is consequential to government Amendment No. 18. The noble Lord, Lord Bassam, spoke to Amendment No. 60 when he spoke to Amendment No. 18 in the earlier sitting at Report. I therefore beg to move Amendment No. 50B and commend Amendments Nos. 57B and 60 to the House. As I said, I shall not move Amendments Nos. 57C and 59A.

On Question, amendment agreed to.

5.15 p.m.

Lord Kingsland moved Amendment No. 50C: Page 16, line 39, after "more" insert "legally qualified

The noble Lord said: My Lords, in moving Amendment No. 50C I shall speak also to the other amendments in the group. From my point of view, the crucial amendments in this group are Amendments Nos. 54A and 57A. Amendment No. 54A, which is kindly supported by the noble Lord, Lord Goodhart, is very close to the amendment that he and the noble Lord, Lord McNally, have tabled.

The issue behind this group of amendments concerns whether the new tribunal should have lay members on it. The existing tribunal does and normally sits as three, with one legal member and two lay wingmen. The new tribunal apparently will sit with only one legal member.

Anyone who has an even passing acquaintanceship with asylum applications will know that the credibility of the applicant is more often than not the determining issue. Credibility is an issue of fact. Indeed, credibility in an asylum case is a particularly difficult issue of fact, both because it is based on evidence given by applicants born and brought up in a world alien in religion, language and culture from our own; but also because it is extremely difficult to get reliable documentary or oral corroboration of alleged facts. Yet it is crucial that the new tribunal is, and is seen to be, competent in reaching accurate final conclusions about credibility.

That is so because the Home Office interview procedure is widely regarded as deeply flawed—the statistics speak for themselves on this matter; because the Home Office is not an impartial forum and becomes a party to any later appeal; and because, most important of all, the new tribunal is to be the one and only occasion when the factual issues are heard, assessed and determined by an impartial forum. Review of its decisions are only on errors of law, and then only on the papers.

So what steps have the Government taken to ensure that this impartial new tribunal is up to its task? The short and, indeed, long answer to that question is "none". Indeed, they have made the chances of an objective assessment of credibility even less likely. There are at least three reasons for that. First, the new tribunal is not a tribunal at all. The Government have not kept the existing three-person tribunal and expunged the single-person adjudicator. They have destroyed the three-person tribunal and replaced it with a single member. If any noble Lords want further proof of that, they should simply look at the schedules. The basis of the new scheme is not the schedule to the 2002 Act on tribunals, but the schedule on adjudicators. Indeed, it is hard not to detect a degree of hypocrisy in the use of the expression, "tribunal".

Secondly, the arrangements for the new so-called tribunals are just plain wrong, because applicants are entitled to have the factual aspects of their case heard, fairly and impartially, and assessed properly. If the tribunal were dealing with a criminal matter, the person appearing before it would have their case determined by tribunals of either three lay members in a magistrates' court, or 12 lay members in the Crown Court. However, the consequence of making factual errors in an asylum case can be far graver than in any criminal trial in this country.

Moreover, it is not only wrong of the Government to exclude lay adjudication from such tribunals, but plain foolish. The central object of the design of the statutory regime should be to make it sufficiently fair to discourage the courts from providing a parallel remedy in judicial review, as other statutory regimes have done successfully. One example is that of enforcement appeals. If the courts are not confident that issues of fact are properly dealt with by the system, they will permit judicial review on grounds of either perversity or disproportionality, following oral argument on permission applications—oral arguments that are denied under the proposed statutory regime.

That third consequence is much less likely to be the case if the tribunal is composed of three members. I accept that having three lawyers would be extremely expensive; but, much more importantly, it would be much less desirable than having one lawyer and two lay members, with the selection of lay members geared to employ individuals with long experience of assessing character, a reasonable proportion of whom should come from the ethnic minorities to reflect the backgrounds of the applicants. That would vastly improve confidence in the fairness of the objective fact-finding procedure. In doing so, it would make the statutory regime impervious to judicial review.

I hope that the Minister will forgive me if I express some scepticism about the Government's motives on the matter of lay representation on bodies that have a mixture of fact-finding and legal duties. That mistrust is most colourfully manifested in the Government's attitudes to jury trials, as we saw in the great debates on the then Criminal Justice Bill last year. We have also seen attempts—some successful—to remove lay members from tribunals, such as the social security tribunals. There seems to be a growing lack of trust by the Government in the judgment of our citizens. Is that because they perceive that our citizens have a growing lack of trust in them? I beg to move.

Lord Goodhart

My Lords, three of the amendments in the group—Amendments Nos. 54, 55 and 56—are in my name and that of my noble friend Lord McNally. Two of the others—Amendments Nos. 54A and 57A—were tabled by the noble Lord, Lord Kingsland, and I have also put my name to them.

There is enormous value in having some lay members of the tribunal. A purpose of many parts of the tribunal system is that it is possible to bring into tribunals that exercise judicial functions people who have practical experience, even if they do not have legal qualifications. Employment tribunals are a well known example. For the reasons very clearly expressed by the noble Lord, we think it of particular importance that the AIT should not be restricted purely to people with a legal qualification. Many lay people have the common sense, understanding of human nature and so on to make them at least equally good judges of fact as people with legal training. As the noble Lord explained, in very many aspects such judgment is particularly important.

That is more the case than it would be otherwise because of the notoriously inadequate record of the initial decisions made by the immigration officers, of which a strikingly high proportion are overturned on appeal. We see no prospect of the standard of those decisions being substantially raised in the immediate future, although we hope that it will be a target in the longer run. Whatever our views might be if that standard were higher than now, unless it is substantially raised there is a very strong case—it would remain in any event—not only for the inclusion of lay members on the tribunal, but for saying that the initial decision of the tribunal needs to be taken by a panel of three. Then one or two lay members could be included on the tribunal, with a legally qualified chair. Again, that pattern is very frequently adopted in other tribunals, such as employment tribunals.

The amendments would very substantially advance the cause of justice. As the noble Lord said, where there has been a failure of justice by the tribunal, the consequences could be very serious—more so than those of a wrongful criminal conviction. We are happy to make common cause with the noble Lord over all the amendments.

The Countess of Mar

My Lords, I have resisted the temptation to speak on the subject throughout debates on the Bill. I reiterate that I am a lay member of the Immigration Appeal Tribunal. One factor not covered in the debate is the amount of stress on the current chairmen of the tribunals, let alone the adjudicators. They have political and public pressures on them to do the job and get it right. In many cases, they work in isolation on case after case, and write up very often late at night. On many occasions, I can see the exhaustion in my colleagues' faces. Occasionally, a legal member can go off the rails. If he is sitting on his own, that may not be picked up for quite a long time.

5.30 p.m.

I find it difficult to support my job in the face of the fact that the Government do not like it. At the same time, Her Majesty's Government should consider the pressures that they are putting on these people. There is a backlog of thousands of cases, and the pressure is on to clear that backlog. It is very important to have even one lay member to support them, to discuss the case with them, and, as the noble Lord, Lord Kingsland, made clear, to come to conclusions on the credibility of the applicant in the first place.

We must remember that this is the only jurisdiction in this country that has the power of invoking the death penalty—that is a very dramatic way of putting it. We can also impose on people an awful prison sentence. Some of the conditions in the countries that asylum seekers come from are appalling. One need only have someone who is very tired and not quite concentrating to make a little mistake. A lay member may just be able to prevent such a mistake from being made.

Lord Newton of Braintree

My Lords, I am encouraged by the presence of my distinguished predecessor, the noble and learned Lord, Lord Archer of Sandwell, to intervene briefly. I wish to quote from something that the Council on Tribunals, under the noble and learned Lord's chairmanship, said on an earlier proposal of this kind in its 1999 report. Page 11 states: We were troubled by the removal of the lay element from the Immigration Appeal Tribunal. Although we recognise that lay members may be unnecessary in cases concerned solely with issues of law, we believe that they have a valuable contribution to make when issues of credibility arise, particularly in asylum appeals". As it happens, and as the noble and learned Lord will certainly remember, that proposal was changed during the passage of the Bill and the Lord Chancellor's power to appoint lay members to the Immigration Appeal Tribunal at that stage was preserved. This is not a point to which the Council on Tribunals has addressed quite the same attention on this occasion. Being more preoccupied with some of the other matters that I have touched on today, and given its less than full enthusiasm for the proposed single tier in this area, it has focused on other things.

In fairness to the Minister, we should acknowledge that the position is a little muddier in this area than has so far been acknowledged in this debate. The report published two or three years ago—I have forgotten the exact date—by Sir Andrew Leggatt, Tribunals for Users, which underpins the Government's forthcoming proposals for reform in that area, pointed out that it was curious that lay members are in the second-tier tribunal and not in the first-tier tribunal. That is the opposite of what one would expect, and what we would urge, in most systems.

I realise that the world has changed, because Sir Andrew recommended a general two-tier approach to tribunals, which the Government have now rejected in this area. It was in that context that he made the following proposal, which I quote from paragraph 23 of his report: There should be a first tier immigration and asylum tribunal, within a separate Division, which should be the sole judge of issues of fact. Complex factual issues are a regular feature of immigration and asylum cases, ranging from the circumstances of an alleged marriage or the obligations within an extended family abroad to the political situation in a country from which asylum is sought. Many cases would not be suitable for hearing by a chairman, even legally qualified, sitting alone and expert members should be used when appropriate at this level. In setting the qualifications for appointment to the tribunal, and to sit in particular cases, we believe"— that is to say, Andrew Leggatt and his team— that special care should be taken to ensure that those selected bring relevant experience and skills to the decisions to be taken, such as knowledge of conditions in particular countries concerned, or of refugees". In the context in which Sir Andrew reported, he said that there should be a second-tier tribunal, which would consist of lawyers sitting alone—that is to say, the more normal model.

I recognise that in one sense the world has moved on from the one in which Sir Andrew made those proposals. Nevertheless, the core of this is the argument that he sets out in the paragraph from which I have just quoted, which links very nicely with some of the remarks made in this debate about the nature of the decisions taken at what I will express in shorthand as the first-tier level. I have in mind the factors that need to be considered, the importance of credibility and the involvement of relevant experts—that was the word he used; it was certainly non-lawyer participants—in making those judgments of fact.

It would be helpful if the Government could clarify why they have rejected this line of argument, which appears to have at least as much merit in the context of the single-tier proposals as in the context, which I acknowledge is different, of what Sir Andrew said.

Baroness Carnegy of Lour

My Lords, I wish to reiterate a point that my noble friend Lord Kingsland made: the possibility of having lay members and an ethnic minority member, or perhaps two, to make the process more credible in the eyes of the public and the asylum seeker concerned. Several noble Lords have pointed out that this is the one opportunity when the facts can be ascertained. It is an absolutely critical time for an asylum seeker. To extend the possible membership of the tribunal by making it possible to have a suitably experienced—as the Bill requires—ethnic minority member is a very important point that we should not forget.

Lord Filkin

My Lords, I wish to place on the record that I am well aware of the value that lay members have brought in the past in these matters, and of the value that they bring to tribunals in a range of circumstances, not least employment tribunals, as the noble Lord, Lord Goodhart, indicated. As the noble Lord, Lord Newton, signalled, we shall shortly publish our proposals for taking forward Sir Andrew Leggatt's proposals, which I hope will pick up the essence of his approach. However, that is for another time.

Amendments Nos. 54 to 56 have been grouped with Amendments Nos. 50C, 54A and 57A as they relate to the appointment of members of the asylum and immigration tribunal, and how the members are deployed within the tribunal. Amendments Nos. 54 to 56 when read together would mean that a person is eligible for appointment as a member of the tribunal if, in the Lord Chancellor's opinion, he or she had legal or other experience that made them suitable for appointment. The thrust of these amendments would be to retain the existing provisions in the Nationality, Immigration and Asylum Act 2002 for the appointment of adjudicators with eligibility for judicial posts not based solely on legal qualification.

Amendment No. 54A is very clear that its purpose is to enable lay people to be appointed to the tribunal. The noble Lord, Lord Kingsland, tabled a similar amendment in Committee, which was not debated then.

Amendment No. 57A is new and would require appeal hearings to be conducted by three member panels, unless directed by the president. Amendment No. 50C would ensure that determinations made by panels composed of lay members would still be subject to review in the High Court.

Let me seek to explain why we do not feel that these amendments are appropriate. After considerable thought, as a product of how we craft a new single-tier structure, we have taken the decision to ensure that the judiciary in the new asylum and immigration tribunal are appointed on the basis of qualified legal experience, or, in the opinion of the Lord Chancellor, they have legal experience which makes them suitable for appointment.

In setting out the reasons why we do not agree with the amendments, I will go back into history a little to explain how we have got to the current situation with the role of lay members in the appellate system.

The existing two-tier appeal system was introduced by the Immigration Act 1971. Lay members participated in panels formed as part of the Immigration Appeal Tribunal, as appeals to the IAT could be made on the grounds of errors both of law and of fact. However, the system of appeal introduced over 30 years ago by the Immigration Act 1971 bears little relationship to the complex system that we have today.

Compared to 1971, asylum and immigration appeals now raise many complicated legal issues that require close legal scrutiny and consideration. In these circumstances, a judge who has been appointed on the basis of legal experience is considered competent to conduct an appeal hearing on their own. However, it would be impossible to allow a lay member to conduct an appeal hearing on their own, and so this means they may be deployed only as part of a panel, as they are at present on the IAT.

However, even within the IAT it has become open to question whether lay members can claim to be an essential component to panel determinations on points of law, especially since the Nationality, Immigration and Asylum Act 2002, which restricted appeal to the IAT to points of law only. Lay members have made a valuable contribution to the IAT over the past 30 years or so, but these changes have diminished the role of lay members and placed them in an anomalous position—a position that the Government have addressed as part of their proposals for the new Asylum and Immigration Tribunal.

The majority of cases in the new tribunal will be heard by a single immigration judge. As adjudicators do now, they will need to consider points of law and of fact, and will therefore need to be legally qualified, legally experienced and competent to do this effectively. This rules out the deployment of lay members in this role, as their sole contribution to the decision-making process is restricted to matters of fact. It might be argued that lay members should be utilised in three-member panels, as is done now. However, in the new Asylum and Immigration Tribunal, the intention is that panels will usually be set up to hear only appeals that raise novel or complex points of law, or those that help to set authoritative case law for the tribunal. It goes without saying that the judicial bench hearing these appeals must be legally qualified.

The requirement in Amendment No. 57A that nearly all appeal hearings must be by three-member panels would, of course, also have a detrimental impact on resources and the speed of the appeal process. First, it would be wasteful of tribunal resources, as in the existing system just over half of appeals stop at the adjudicator stage, and only a minority of cases are ever considered by a three-member panel in the IAT. There is no need to have a panel for every case. Secondly, if the new tribunal had three-member panels within the faster times we expect, it would have to recruit many more new members, which would have to be paid for. Thirdly, if the tribunal were to keep to its existing resources, the number of appeal hearings it would be able to do per month with three-member panels would fall dramatically. There are some 56 lay members, and they are part time, sitting on average 40 to 50 days per year. That would inevitably lead to backlogs and delays. Lastly, in respect of lay membership within tribunals, the Leggatt report concluded that, There is no justification for any members to sit, whether expert or lay, unless they have a particular function to fulfil". That is the essential thrust of why we believe that these proposals are consistent with Andrew Leggatt's proposals, recognising, like the noble Lord, Lord Newton, that times have moved on.

While lay members have had a role in the existing system, the Government have considered the needs of the new tribunal very carefully. We have concluded that the case for retaining lay members is no longer sustainable. To retain their services purely on the basis of custom and practice—which is what these amendments call for—would not be appropriate, courteous or right.

On the point made by the noble Lord, Lord Kingsland, about credibility, the future members of the IAT, adjudicators and legal members of the IAT are well able to assess credibility issues. They are trained and able to do so. The tribunal will be flexible; it will have both panels and single judges for cases. The tribunal is also well able to consider points of fact, that is, the purpose of the appeal when facts and law are considered together. If facts are not properly considered, that might amount to an error of law, and could be the subject of a review in the High Court.

In the new IAT, the judiciary are able to assess facts, as I have signalled, and if expert advice is required, as referred to by the noble Lord, Lord Goodhart, no doubt this can be requested. The low percentage of cases that result in the adjudicator's determination being overturned points to that credibility.

On the point raised by the noble Countess, Lady Mar, we are seeking to improve the quality of the tribunal through a new judicial structure that would allow the monitoring of individual members of the AIT. If a member made an error of law in determination, again that could be subject to appeal.

I have touched on the points made by the noble Lord, Lord Newton, about Sir Andrew Leggatt's report. The central point is that he was describing what was appropriate for a two-tier system; we are discussing a single-tier system. I share the desire for diversity expressed by the noble Baroness, Lady Carnegy of Lour. We are clear that that is subject to a merit test, as has been signalled previously. The way to address that is to look at how to ensure that there is a pool of suitable, qualified lawyers available for appointment if they meet the merit test to be considered as judges in the new AIT structure.

I hope that I have been able to explain why, with some sorrow, we feel that the contribution that lay members have made in the past has now come to an end as a consequence of the substantially different role that the AIT will perform.

5.45 p.m.

Lord Kingsland

My Lords, I am not sure whether to conclude that the Minister completely missed the point of all the submissions which have been made by your Lordships, or if he simply did not want to know about them. I will leave it to your Lordships to reach your own conclusions. I will not repeat my speech, although the Minister did not answer any of the central issues that I raised in my submission.

I am most grateful to all noble Lords who contributed. I will, if I may, single out my noble friend Lord Newton of Braintree, who brought the telling argument of Lord Justice Leggatt to bear on the lack of logic of the Minister. The Minister seemed to suggest that, because the only grounds of appeal from the tribunal to the High Court are errors of law, the only people who are qualified to sit on tribunals ought to be lawyers. Yet the basis of all the arguments that have been deployed on this amendment this evening is exactly the opposite. It is because grounds of fact are not appealable to the High Court that we need to be confident that they will be properly determined at tribunal level. The Minister has simply not confronted that question, let alone answered it to the satisfaction of the Opposition. The noble Countess, Lady Mar, observed that this is the only tribunal that can send a person to their death because it does not find a story credible. That is particularly and conclusively telling.

I want to test the opinion of the House. The first amendment in this group is Amendment No. 50C. Will the Minister accept that—if by any chance the Opposition and our supporters should succeed in this Division—Amendments Nos. 54A and 57A are contingent upon Amendment No. 50C? Will he accept that the group of amendments goes together in the vote?

Lord Filkin

My Lords, I would be grateful if the noble Lord, Lord Kingsland, would allow me to reflect on that and give him an answer after we have seen the outcome of that Division.

Lord Kingsland

My Lords, the issues have been widely canvassed in the debate this evening. It would be most extraordinary if—were we to win this vote—the Minister then said that we had to go through all the other amendments in this group as well. Be that as it may, I would like to test the opinion of the House.

5.49 p.m.

On Question, Whether the said amendment (No. 50C) shall be agreed to?

Their Lordships divided: Contents, 151; Not-Contents, 98.

Division No. 2
Addington, L. Hunt of Wirral, L.
Alton of Liverpool, L. Hurd of Westwell, L.
Anelay of St Johns, B. Inglewood, L.
Astor of Hever, L. James of Holland Park, B.
Attlee, E. Jenkin of Roding, L.
Avebury, L. Jopling, L.
Baker of Dorking, L. Kimball, L.
Barker, B. Kingsland, L.
Beaumont of Whitley, L. Kirkham, L.
Blaker, L. Laing of Dunphail, L.
Blatch, B. Listowel, E.
Bradshaw, L. Luke, L.
Bridgeman, V. Lyell, L.
Brittan of Spennithorne, L. McColl of Dulwich, L.
Brooke of Sutton Mandeville, L. MacGregor of Pulham Market, L.
Brougham and Vaux, L.
Burnham, L. Mackay of Clashfern, L.
Buscombe, B. Mackie of Benshie, L.
Caithness, E. McNally, L.
Campbell of Alloway, L. Maddock, B.
Carlisle of Bucklow, L. Mar, C.
Carnegy of Lour, B. Mar and Kellie, E.
Chadlington, L. Marlesford, L.
Chester, Bp. Masham of Ilton, B.
Clement-Jones, L. Miller of Chilthorne Domer, B.
Cobbold, L. Miller of Hendon, B.
Colwyn, L. Monro of Langholm, L.
Cope of Berkeley, L. [Teller] Montagu of Beaulieu, L.
Craigavon, V. Montrose, D.
Crickhowell, L. Moynihan, L.
Darcy de Knayth, B. Murton of Lindisfarne, L.
Deedes, L. Naseby, L.
Dholakia, L. Newby, L.
Dixon-Smith, L. Noakes, B.
Donaldson of Lymington, L. Northbrook, L.
Eccles of Moulton, B. Northesk, E.
Eden of Winton, L. Northover, B.
Elles, B. Oakeshott of Seagrove Bay, L.
Elliott of Morpeth, L. O'Cathain, B.
Erroll, E. Oppenheim-Barnes, B.
Ferrers, E. Park of Monmouth, B.
Flather, B. Patten, L.
Forsyth of Drumlean, L. Peel, E.
Fowler, L. Platt of Writtle, B.
Freeman, L. Plumb, L.
Garel-Jones, L. Plummer of St. Marylebone, L.
Geddes, L. Prior, L.
Gilmour of Craigmillar, L. Quinton, L.
Glentoran, L. Rawlinson of Ewell, L.
Goodhart, L. Razzall, L.
Goschen, V. Reay, L.
Hamwee, B. Redesdale, L.
Hanham, B. Renton, L.
Hanningfield, L. Roberts of Conwy, L.
Harris of Richmond, B. Rodgers of Quarry Bank, L.
Hayhoe, L. Roper, L. [Teller]
Home, E. Rotherwick, L.
Hooper, B. Russell, E.
Howe, E. Saltoun of Abernethy, Ly.
Howe of Aberavon, L. Seccombe, B.
Howe of Idlicote, B. Selsdon, L.
Howell of Guildford, L. Sharman, L.
Sharp of Guildford, B. Tope, L.
Sharples, B. Trenchard, V.
Shaw of Northstead, L. Tugendhat, L.
Shutt of Greetland, L. Ullswater, V.
Skelmersdale, L. Waddington, L.
Smith of Clifton, L. Wakeham, L.
Stern, B. Wallace of Saltaire, L.
Stewartby, L. Walmsley, B.
Strathclyde, L. Walton of Detchant, L.
Swinfen, L. Watson of Richmond, L.
Taverne, L. Weatherill, L.
Thomas of Gresford, L. Wilcox, B.
Thomas of Walliswood, B. Williams of Crosby, B.
Windlesham, L.
Ahmed, L. Hollis of Heigham, B.
Amos, B. (Lord President of the Council) Howells of St. Davids, B.
Howie of Troon, L.
Andrews, B. Hoyle, L.
Ashton of Upholland, B. Hughes of Woodside, L.
Bassam of Brighton, L. Hunt of Kings Heath, L.
Berkeley, L. Jay of Paddington, B.
Bernstein of Craigweil, L. Jones, L.
Billingham, B. Jordan, L.
Blackstone, B. Kirkhill, L.
Borrie, L. Lea of Crondall, L.
Bragg, L. Lipsey, L.
Brooke of Alverthorpe, L. Lofthouse of Pontefract, L.
Brookman, L. McCarthy, L.
Burlison, L. Macdonald of Tradeston, L.
Campbell-Savours, L. McIntosh of Haringey, L.
Carter, L. McIntosh of Hudnall, B.
Christopher, L. MacKenzie of Culkein, L.
Clarke of Hampstead, L. Marsh, L.
Clinton-Davis, L. Mason of Barnsley, L.
Corbett of Castle Vale, L. Massey of Darwen, B.
Crawley, B. Merlyn-Rees, L.
David, B. Mitchell, L.
Davies of Coity, L. Morgan, L.
Davies of Oldham, L. [Teller] Morris of Aberavon, L.
Dean of Thornton-le-Fylde, B. Morris of Manchester, L.
Desai, L. Nicol, B.
Dixon, L. Patel of Blackburn, L.
Donoughue, L. Pitkeathley, B.
Dubs, L. Radice, L.
Elder, L. Richard, L.
Evans of Parkside, L. Rooker, L.
Evans of Temple Guiting, L. Scotland of Asthal, B.
Falconer of Thoroton, L. (Lord Chancellor) Sheldon, L.
Farrington of Ribbleton, B. Simon, V.
Filkin, L. Symons of Vernham Dean, B.
Fyfe of Fairfield, L. Temple-Morris, L.
Gale, B. Thornton, B.
Gibson of Market Rasen, B. Tomlinson, L.
Golding, B. Triesman, L.
Goldsmith, L. Turnberg, L.
Gordon of Strathblane, L. Turner of Camden, B.
Gould of Potternewton, B. Varley, L.
Graham of Edmonton, L. Watson of Invergowrie, L.
Grantchester, L. Whitty, L.
Grocott, L. [Teller] Wilkins, B.
Harrison, L. Williams of Elvel, L.
Hayman, B. Woolmer of Leeds, L.
Hilton of Eggardon, B. Young of Old Scone, B.
Hogg of Cumbernauld, L.

Resolved in the affirmative, and amendment agreed to accordingly.

[Amendments Nos. 51 and 52 not moved.]

6 p.m.

Lord Kingsland moved Amendment No. 52A: After Clause 14, insert the following new clause—