§ (1) Any interview with the applicant shall be conducted—
- (a) by personnel experienced in interview techniques and trained in cross-cultural communication;
- (b) by personnel of the applicant's own gender if requested by the applicant.
§ (2) An accurate, verbatim and legible written record shall be kept of any interview held under subsection (1).
§ (3) The applicant may request the record be read back to him and to request his alterations be included or, if rejected, recorded.
§ (4) Any decision on the applicant's claim shall be determined—
- (a) by the same personnel as conducted the interview;
- (b) on the basis of up-to-date and accurate information on the applicant's country of origin;
- (c) after careful consideration of any medical evidence bearing out allegations of torture.
§ (5) An independent inspector shall be appointed after consultation with relevant organisations—
- (a) to report annually on the quality of decision-making in asylum cases;
- (b) to lay that report before Parliament.
§ (6) Section 14 shall not be enacted until and unless the independent inspector is satisfied that the quality of initial decision-making has been improved."
§ The noble Lord said: My Lords, the tone of many of these amendments acknowledges that there is no easy fix for some of the dilemmas here. The Minister appears to recognise that the Opposition Benches are trying to be constructive in their approach, and certainly the thrust of Amendment No. 52C reflects that. I return to the tale of the Irishman who, when asked for directions, replied by saying, "If I were you, I would not start from here". We suggest that, in a Bill whose main thrust seems to be to eradicate the overly cumbersome appeals procedure, it misses the more basic fact that the real fault in the system lies in the initial judgments.
§ In 2003 over 64,000 initial decisions were made for asylum. Well over 16,000 of those were subsequently overturned. That indicates a massive waste of resources; it is massively unfair to claimants; and it damages public confidence in the system. In Canada only 1 per cent of initial decisions are overturned, which suggests that perhaps the Government have approached this whole problem from the wrong place and in the wrong way.
We are encouraged in this approach by the opinion of the Home Affairs Select Committee, which said,
The real flaws in the system appear to be at the stage of initial decision-making, not that of appeal".
The Constitutional Affairs Select Committee said,
we recommend that the removal of a formal tier of appeal should not be undertaken until it can be shown that there has been a significant improvement in initial decision making and the rise in the number of successful first tier appeals has been substantially reversed".
§ That would seem to be the sensible way to get this system right. As the noble Lord, Lord Kingsland, has indicated, we do not ignore the Government's initiatives and attempts to improve the system. We welcome the widespread consultation that has taken place. We welcome the setting up of the Advisory Panel on Country Information, although it might have been better if the Government had taken advice from that panel before extending their defined safe countries. Nevertheless, there are good and well intentioned attempts to get this right. We also welcome the involvement of the UNHCR in conducting an audit to report regularly on the quality of initial decision-making.
§ This amendment, however, puts forward some specifics to improve initial decision-making. We want to see better, more accurate, timely and impartial information relating to countries of origin. We want to see better expertise in relation to caseworkers. Time and again, those who have given evidence or briefed us have complained about the low quality of personnel involved in initial decision-making. That is not fair to the personnel involved and does not help in addressing some of the problems that we are concerned with.62
§ In process we want to see greater continuity of human contact between decisions at the initial and appeal stages. We also think that there are too many perverse incentives built into the system. Surely the main thrust is not in getting the decision fast but in getting it right. That is why we suggest that a little more investment at the initial stage will produce that result.
§ We believe that there should be a better appreciation of medical evidence as it relates to allegations of torture, and available and adequate legal aid and advice at the initial stage.
§ I hope that the Minister will see this as very constructive and, in terms of what both the Home Affairs and the Constitutional Affairs Select Committees have recommended, as going right to the core of the problem—rather than what the Government have tried to do in their meander through this legislation in both Houses—to address some of the consequences of the imperfections at the initial stage. I beg to move.
§ Baroness Park of Monmouth
My Lords, I strongly support this amendment and, in particular, subsections (4)(b) and (c).
My grounds, which relate to Zimbabwe—the only area on which I have any special knowledge—are that the Home Office has repeatedly decided that Zimbabwe is a safe country, despite the fact that the country reports from the FCO and the UNHCR took a totally contrary view. The enormous influx of refugees into Botswana and South Africa suggests that it is not exactly a safe country.
With regard to subsection (4)(c) I hope that the Minister can tell us at some stage, perhaps not now, whether the panels which are deciding whether there has been torture ask the Amnesty International specialists and the Amani Trust—who know torture when they see it.
§ The Countess of Mar
My Lords, I thank the noble Lord, Lord McNally, for this amendment but I do not think that it should be on the face of the Bill.
The Home Office is suffering from a managerial problem. Staff need to be motivated; they need to be informed as to how important their work is; and perhaps they should be paid properly. I am sure that a lot of the problems could be resolved with proper training and proper management.
§ Lord Newton of Braintree
My Lords, I am tempted to rise because of what the noble Countess, Lady Mar, has said. I share the view that this amendment, in its exact form, should not be on the face of the Bill.
On the other hand, I want to express my support for the general thrust of some of the points the noble Lord, Lord McNally, has made, while acknowledging—with a wry smile in the direction of the Minister—that here he is effectively having to answer for matters that are primarily for the Home Office rather than for the department which leads him to be in his present place in the House.
63 If there have been two long-running concerns regarding what happens in this area—probably going back to the time of my predecessor, the noble and learned Lord, Lord Archer of Sandwell, as chairman of the Council on Tribunals—it is the quality of initial decision-making combined with something that has not so far been touched on in this debate, which is the astonishing proportion of hearings before the adjudicators at which no one comes from the Home Office. There is no Home Office presenting officer—known in the trade as a HOPO—to present the Home Office case.
Given the combination of question marks—I put it no stronger than that—over the initial decision-making, coupled with the fact that a surprisingly high proportion of hearings take place with nobody there to put the case for the Home Office, it is perhaps not surprising that the amount of overturning at the initial stage has been rather high.
Whether or not that is a fair line of argument, there is one thing on which all would agree there is concern, whether it be the great committees to which reference has been made by the Liberal Democrat Front Bench, or the experience of the Council on Tribunals, or anybody who has looked at this. It is the need, whatever is done with the tribunal system, to improve the quality of initial decision-making and to make sure that the Home Office's case is sensibly represented when an appeal hearing takes place.
§ Lord Filkin
My Lords, I could not agree more with quite a lot of what has been said, particularly by the noble Countess, Lady Mar, that, while these may in many cases be proper goals of policy, they should not, for a variety of reasons, be on the face of the Bill.
I am not sure whether the noble Lord, Lord Newton, expresses congratulations or sympathy that I am answering for the Home Office. It is not for the first time nor for the last, and it is always a privilege to do so.
§ Lord Newton of Braintree
My Lords, I will not define whether it is congratulation or sympathy, but the Minister may be able to guess.
§ Lord Filkin
My Lords, I shall say no more.
In essence, I agree with the central thrust of what the noble Lord, Lord McNally, has said: we want the right decisions to be made in IND—that is easy to say but not easy to do—and for them to be made as expeditiously as possible. That is the aim of the policy and the aim of the process. We are committed to high-quality decisions being made in IND for obvious reasons; it will lead to a more robust system.
We have introduced a range of measures to improve the quality of the decisions it takes. These include work on identifying the right candidates for asylum casework; looking at additional ways of strengthening the training and development of caseworkers; having samples of asylum decisions quality assured by senior caseworkers and external assessors; extending the 64 feedback we obtain from appeal decisions; and doing further work on the country information products and instructions we issue.
While we consider the quality of initial decisions to be good we accept that more can be done and we are taking active steps in this area. In taking forward this work we are keen to involve outside help, as appropriate—as we are doing, for example, with the UNCHR. However, I do not consider that primary legislation is the appropriate vehicle for this.
Let me say a little more about what we are doing in regard to some of the specific issues raised by the noble Lord, Lord McNally. All asylum caseworkers attend a three-day intensive training course following their basic asylum training. After that, they have an opportunity to sit in on live interviews and the first interviews they themselves conduct will also be observed by a senior officer or an experienced colleague. There is also a certain amount of "learning on the job" as a typical asylum caseworker may conduct around 200 interviews during the course of a year.
There is a substantial cultural diversity in the workforce of IND, which is desirable given the wide range of nationalities—in excess of 150—with which it deals. Wherever operationally possible, we offer an interviewer of the same gender as the applicant upon request. Where a request has been made in advance, there has been no difficulty in doing this. If the request is made on the day, we still do our best to comply.
It is standard practice to keep an accurate, verbatim and legible manuscript record of the interview and to provide the applicant with a copy of the same at the end of the interview. Under current procedures, the interviewing officer has the discretion to allow a read-back of the interview to vulnerable applicants. Our experience is that the present system works well and that there is little demand for interviews to be read back generally. Any complaint about the accuracy of the interview record may be made after the interview and may also be raised at appeal if asylum is refused. We have received very few complaints about the conduct and the manuscript recording of interviews.
In many cases the person conducting the interview will be the person who decides the claim. This clearly has some advantages. However, with caseworkers being absent on leave or training and with some caseworkers working part-time, it would be operationally inefficient for the system to be too rigid and to always have the interviewer as the decision maker. It is possible for a person who has not interviewed the applicant to reach a decision on the claim, given that he or she will have available the full interview record and the relevant background information.
We recognise that accurate, balanced country information is vital to an effective system. As the noble Lord, Lord McNally, indicated, the 2002 Act established the advisory panel, and the UNHCR has cited the creation of the panel as an example of good practice. The panel's work has demonstrated that it is fulfilling its function in a robust and effective manner and the Home Office is keen to respond positively to its 65 recommendations. With the assistance of the panel, we are confident that we can ensure that Home Office country material meets the highest standards.
Careful consideration is given to medical evidence bearing out allegations of torture. We are delighted that the Medical Foundation now provides regular workshops to asylum caseworkers to better equip them to interview victims of torture and to take proper account of medical evidence when reaching a decision on an applicant's claim.
The other elements of the amendment relate to an independent inspector. We do not consider that an inspector needs to be appointed. As I have outlined, we have many measures in hand to improve further the quality of original decision making and we are involving outside bodies in that work where appropriate. We believe that the quality of decision making is good—it has certainly significantly improved over the past seven years or so—and we are satisfied that the new appeal structure will provide a robust, independent means of challenging adverse decisions.
I turn now to deal with some of the other points raised in the debate. As to torture, our country reports reflect a wide range of information and sources, including Amnesty International, in regard to conditions in particular countries, and we take account of medical reports and reports from the Medical Foundation when assessing asylum claims. As to Home Office presenting officers, we wish to have presenting officers at as high a percentage as possible of appeals before the IAT, for the reasons given by the noble Lord, Lord McNally.
We do not believe that primary legislation is the place for these measures. However, many if not all of them are proper goals of policy and of management and we are working to achieve them. I hope that the noble Lord, Lord McNally, will withdraw his amendment.
§ 6.45 p.m.
§ Lord McNally
My Lords, two matters always encourage the mover of an amendment: one is a steady stream of papers coming from the officials' box and the other is the quality of supporting speakers. I have had both with this amendment.
As the noble Countess, Lady Mar, said, I realise that some of the objectives may be matters for practice and training rather than legislation. I shall study the Minister's reply before deciding how to take this forward at Third Reading.
Having listened to those who have worked on this subject, I should tell the Minister that part of the problem at the initial stage has been a culture that somehow everything will be swept up at a later stage. That may explain the point of the noble Lord, Lord Newton, about the absence of Home Office personnel at key meetings. That is the kind of thing that undermines confidence and perhaps introduces slack practice.
I have been encouraged by the contributions that have been made. I hope that the Minister and his colleagues will read them carefully. We will return to this matter at Third Reading, when I hope we will see further evidence that the Government are addressing 66 the problem of the initial stage in the process—which, as I have said, two committees have already indicated may have been the right place for the Government to have started this journey in the first place. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 53 not moved.]
§ [Amendment No. 54 not moved.]
Lord Kingsland moved Amendment No. 54A:
Page 34, line 17, after "legal" insert "or lay
§ On Question, amendment agreed to.
Lord Goodhart moved Amendments Nos. 55 and 56:
Page 34, line 18, leave out first "as
Page 34, line 18, leave out from "appointment" to end of line 19.
§ On Question, amendments agreed to.
Lord Clinton-Davis moved Amendment No. 56A:
Page 34, line 24, leave out "(which may include provision for dismissal)
§ The noble Lord said: My Lords, in moving Amendment No. 56A, which stands in my name and that of my noble and learned friend Lord Archer of Sandwell, I shall speak also to Amendment No. 57D.
§ These matters have been dealt with sensibly in correspondence between his honour Judge Henry Hodge and my noble and learned friend Lord Falconer. However, we ought to refer to them in order to obtain more certainty about the issues involved. I do not believe that they should be dealt with entirely through correspondence.
The provision in paragraph 3(1)(c) of the schedule states that members of the new single appellate authority,
shall hold and vacate office in accordance with the terms of … [their] appointment".
If we were to stop at that particular point, there would be no issue between us at all. It would follow in that respect all similar provisions in statutes which create judicial posts in courts and/or tribunals.
§ I accept that terms and conditions of appointment have to include terms for removal from office for good cause. In that category, I include incapacity, misconduct, a substantial diminution of work and so on. However, the Bill goes entirely beyond that. It states that the terms and conditions of members of the new tribunal "may include provision for dismissal". I have certain objections to the word being used. "Dismissal" is the language of employment. It is not the language of those holding judicial office. Judicial office holders are not employees. They are independent judicial appointees.
§ There is no need to go beyond the existing law, which simply states that existing officers, adjudicators and immigration tribunal members hold and vacate office in accordance with their terms of employment. Adjudicators 67 and AIT members fear that their terms of employment may deteriorate after commencement as a result of policy. Any change in terms and conditions is seen to be a threat to judicial independence.
§ On a number of occasions, my noble and learned friend the Lord Chancellor has given assurances that the arrangements for disciplining and removing judicial office holders will continue to apply in the new single tier, but there is no need whatever to state that terms and conditions of employment may include provision for dismissal. That adds absolutely nothing to the existing provision, save to arouse fears that the Government intend to promote an adverse change.
§ It is accepted that there is no longer any intention to include a requirement that members of the new single tier should comply with practice directions which are issued from time to time. I ask again if there is any compelling reason to go down the road of making express reference to dismissal at all. If the Government intend to embody in statute what currently happens, why is there any need to change existing law? I therefore hope that my noble friend will think again about this issue. I do not intend call a Division tonight, but I hope that he will think again between now and Third Reading.
§ I turn to Amendment No. 57D. It would simply delete the reference to "supervision" of judicial work and respect the authority of the Lord Chancellor in making rules for the new single tier. I know of no statute which contains provision for one judicial office holder to supervise another. If my noble friend can refer to any particular provision, I shall stand corrected.
§ The judicial hierarchy requires an appellate judge to overrule the decision of a judge who is less senior if it contains errors of law. That ensures that modern judicial decision-making receives modern methods of management. There is every reason for the new single tier to operate on a more collegiate basis than is the case at present. Existing adjudicators work alone and under great pressure of time, but those are not reasons for introducing a power to enable or, worse still, to require one judge to supervise another or, to put it in another way, to compel one judge to be supervised by another.
§ A collegiate atmosphere, discussions between judges, better training and personnel development of judges can be achieved without this unprecedented measure. Regardless of the Government's intentions, without an amendment, the Bill will be read as being inimical to judicial independence. In other words, we should not legislate to create something which we do not intend to apply. I beg to move.
§ Lord Archer of Sandwell
My Lords, I have not previously intervened in your Lordships' debates on the Bill, principally because, whenever it was to be debated at its earlier stages, it chanced that I was out of the country on parliamentary business.
I would have hesitated to intervene at this late stage, both in the progress of the Bill and in today's business, had the matter not been drawn to my attention by my 68 noble friend Lord Clinton-Davis and the Council of Immigration Judges. It is surprising that so startling a provision seems to have received so little attention. As my noble friend said, had Schedule 1(3)(1)(c) ended with "the terms of his appointment", we might have assumed that a member could be appointed on terms which included reference to the termination of his appointment, because that is what happens in many tribunals and happens already in this area. In a sense, it is the drafting which creates the problem by adding the words "which may include provision for dismissal". That is what has occasioned my noble friend's anxiety. There is a constitutional eccentricity in stating so unambiguously that the executive should have an unqualified right to provide for the dismissal of a member of the judiciary.
§ 7 p.m.
§ The Act of Settlement 1701 declared that judges' commissions should provide that they should hold office during good behaviour. Certainly in the case of the senior judiciary there was a provision about how that was to be decided by an address from both Houses of Parliament. As I understand it, all members of the judiciary since have held office so long as there was no complaint about their behaviour.
§ As my noble friend has pointed out, we now have a reference to "dismissal" taken from the vocabulary of employment law, not constitution law. A little earlier in our debate the noble Lord, Lord Newton of Braintree, made reference more than once to the Council on Tribunals, of which he is so distinguished a chairman, and to the fact that I was privileged to chair that council in the past. I wonder whether the Council on Tribunals has been consulted on this provision.
§ I am throwing the question at my noble friend the Minister without having had an opportunity to warn him and of course I shall understand if he says he will let me know at a later stage. But it is a surprising provision that one would have thought might have occasioned some comment from those quarters.
§ It has certainly led to a sense of shock among the existing adjudicators. Of course they already hold and vacate office in accordance with the terms of their appointment, including the duration of their office. But now we are told in effect that they are to be treated as employees.
§ Of course I accept my noble and learned friend the Lord Chancellor's assurance that he has no intention to change the practice, but at present there is no certainty as to what the future may hold or who will decide on appointments and terminations. If it is intended that the present practice shall continue and that members shall continue to hold office during good behaviour, we are faced with the question that has just been asked by my noble friend Lord Clinton-Davis: why change the vocabulary?
§ The anxiety of the members of the tribunal is hardly alleviated by the provision that is the subject of Amendment No. 57D that members of the tribunal shall supervise others. Judges may be appealed, but if they are 69 to be supervised it is startling to find that they may be supervised by their peers—I presume specific members among their peers who have been delegated for that purpose.
§ Of course a collegiate atmosphere exists among adjudicators at the present time. They can discuss, but there is now a danger that this segment of the judiciary is beginning to feel its independence threatened. They find already, as the noble Countess, Lady Mar, pointed out, that targets are prescribed for their workload as though they worked on a conveyor belt; they feel that they have Big Brother looking over their shoulder; and they find that production targets are to be paramount even at the cost of the quality of their work. This has become a serious matter for some of them.
§ We are not debating a word in a statute but a philosophy of judicial practice. Of course judges should be industrious like everyone else and of course immigration and asylum cases should be heard quickly. But if that entails appointing more tribunal members, that may be a price that we have to pay. In the long term it will be a cheaper price than destroying the independence and the confidence of that section of the judiciary.
§ Lord Mackay of Clashfern
My Lords, I support the amendment in the names of the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell. Out of consideration for the noble Lords expecting to take part in the debate on the Housing Bill I shall leave it at that.
§ Lord Goodhart
My Lords, the two amendments raise serious and substantial issues. We should be most grateful to the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell, for raising them. I agree that there is not a case for a lengthy speech. The noble Lord, Lord Clinton-Davis, was right to regard the amendments as unsuitable for dividing the House over, but I hope that the Government will take on board the points made and of their own motion will decide to make the necessary amendments to clear up these matters.
§ Lord Filkin
My Lords, let me more in hope than expectation seek to attempt a full response to try to resolve the matter tonight rather than us having to return to it later.
Regarding Amendment No. 56A, we are aware of concerns that have been raised by the reference to "dismissal" in paragraph 3. The provision is there simply to ensure that the terms of appointment for a member of the tribunal can include provision for removal from office. It is already the current practice for adjudicators and members of the Immigration Appeal Tribunal that their terms of appointment include provision for removal.
70 Why so? Why do it now? Although it may stretch credulity, parliamentary counsel felt that it would be beneficial to place the issue beyond doubt by using a suitable parliamentary opportunity to do so. In other words, it was felt desirable to give legislative clarity and to avoid any uncertainty that judges in appropriate circumstances could be removed from office.
The process for investigating any complaint against a judge is one that we know well and, as your Lordships know, under the disciplinary procedures no removal can take place without the concurrence of the Lord Chief Justice in England and Wales. The expectation of continuing to hold office during good behaviour is our custom and practice.
With regard to dismissal versus removal from office, without wanting to excite too much optimism I shall reflect on the matter to see whether there is any benefit in using different terminology.
With regard to Amendment No. 57D, we are also aware of concerns raised about the power to make rules providing for the supervision of tribunal members in paragraph 20 of Schedule 2. The reference to supervision reflects our intention to develop an organisational structure that will provide judges with better access to support and guidance.
The judiciary is a substantial body. There will be a judicial hierarchy. While individual judges have to make their own judgments on the facts before them without interference from anyone else, there is benefit in their being in a much more collegiate environment, which will be one of the aims of the tribunal.
We believe strongly that experienced judges working with and passing on their expertise to less experienced judges will help to improve the quality of decision making in the tribunal. We propose that immigration judges should be supported by a tier of supervisory judges who will be available to offer advice and guidance, appraise performance, identify training needs and other similar responsibilities that do not impinge on judicial independence. I can say categorically that draft determinations will not be subject to amendment by senior judiciary prior to promulgation.
As to the concerns that the briefing to the IAA judiciary suggested that the terms of appointment could be amended to require compliance with procedure rules or practice directions, officials were considering whether the terms of appointment should include compliance with procedure rules and practice directions. It was floated with the intention of ensuring quality, consistency and accuracy in decision making. However, that approach is no longer considered necessary.
I hope that I have gone a long way towards setting at rest the minds of my noble friend Lord Clinton-Davis and my noble and learned friend Lord Archer of Sandwell. I invite them to consider withdrawing their amendment.
§ Lord Mackay of Clashfern
My Lords, before the Minister sits down, this is a United Kingdom tribunal. Reference to practice in England and Wales, while useful, is not the whole story.
§ Lord Filkin
My Lords, the noble Lord is right. In discussion with officials this morning we reflected on 71 the Northern Ireland situation as being different. Nevertheless, as we know, while it is not exactly the same, there is a robust and strong process in place for ensuring that a judge cannot wrongly be removed from office, as should be the case.
§ Lord Clinton-Davis
My Lords, my noble friend the Minister has spoken of the need for him to reflect further on my original amendment, and I should like to avail myself of the same privilege. I should also like to think again about the subsequent amendment to which I spoke.
I want to thank my noble friend for his intervention, which was valuable, and I thank all those who have supported the ideas behind these amendments. I want to add only two things. First, I cannot give any assurances whatever tonight, but I hope that my noble friend the Minister will think again about what lies behind the amendments. Secondly, for the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 57 not moved.]
Lord Kingsland moved Amendment No. 57A:
Page 35, line 8, leave out from "by" to end of line 9 and insert "three members unless the President from time to time directs
§ On Question, amendment agreed to.
§ Schedule 2 [Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision]:
Lord Filkin moved Amendment No. 57B:
Page 37, leave out lines 39 and 40 and insert—
(a) sections 103A to 103E (review and appeal),
§ On Question, amendment agreed to.
§ [Amendments Nos. 57C to 58 not moved.]
Lord Filkin moved Amendment No. 58A:
Page 43, leave out line 1 and insert—
23 (1) Section 112 (regulations, &c.) shall be amended as follows.
(2) In subsection (2) after "Regulations and rules under this Part" insert ", other than regulations under section 103D(3),".
(3) For subsection (6) substitute—
(6) Regulations under section 103D(3)—
§ On Question, amendment agreed to.
Lord Goodhart moved Amendment No. 59:
Page 44, line 24, leave out "5" and insert "10 working
§ On Question, amendment agreed to.
§ Schedule 4 [Repeals]:
§ [Amendment No. 59A not moved.]
§ On Question, amendment agreed to.