§ 4.50 p.m.
§ Lord Falconer of Thoroton
My Lords, I beg to move that this Bill be now read a second time.
The Government have made substantial progress in the difficult area of asylum and immigration, including meeting the Prime Minister's target of halving the number of asylum claimants from 8,700 in October last year to around 4,000 this September.
Applications for asylum fell dramatically in 2003 as a result of the measures introduced by the Government, including legislation and border controls in France. The downward trend continued in the last three months of the year, with a 52 per cent drop compared with the same period in 2002.
In 2003 as a whole, following a surge in applications before tougher benefits rules came into force, applications fell by 41 per cent—this is four times as much as the average across the rest of the EU.
As a result of the fall in new claims, applications for state support fell by 60 per cent in the last three months of 2003 compared with the same period in 2002. We must recognise and accept our obligation and willingness to accept those in this country who are genuinely persecuted or are in real fear of persecution.
But reducing abuse of the asylum system is an important part of our overall immigration strategy—encouraging managed, legal migration, including from 50 the EU accession countries, working internationally to address the global problems of refugees at source, while robustly preventing abuse of the asylum system and illegal migration.
Despite these successes, we need to continue to respond flexibly to the evolving pressures created by sophisticated and determined people intent on abusing the system.
It is not just about legislation. We are making progress in moving border controls to the Continent. extending what we have already done in France to Belgium, in extending the use of biometrics on visas and at ports, and in agreements with other countries to return failed asylum seekers. We are also reviewing the way the Immigration Service works and how it links with other agencies.
However, legislation is also vital to help us keep one step ahead of this fast moving problem. This is why, on 27 October, the Home Secretary and I announced that we would be bringing forward further legislation to address two remaining problems in the asylum system: applicants who lodge groundless appeals to delay removal; and the problem of asylum seekers who deliberately destroy or dispose of their documents to make unfounded claims.
As noble Lords will know, the central part of this Bill is Clause 14, which creates a unified appellate structure for asylum and immigration appeals. It is important that the appeals system is fair, but it must also provide speed and finality. A swift and final decision is in the interests of both genuine refugees and the British taxpayer, who should not have to fund those seeking to play the multiple tiers of appeal and the support costs they incur.
There remains considerable scope for delay. We have reduced delay in the initial decision process to the point where the number of cases awaiting an initial decision stands at its lowest in a decade, and 80 per cent of decisions on applications are made and served within two months, but delays still exist in the appeals process. Only 43 per cent of decisions on permission to appeal to the tribunal are dealt with within two months and those granted permission can currently expect to wait until October for their hearing.
Of course, people are able to exploit that delay; not necessarily because they have a good case to run but because it enables them, in many cases, to claim benefit from the state and to have access to housing and health care.
Our intention in bringing forward the single tier was to target that delay and reduce abuse in the system. I am confident that our proposals do that, by reducing what is currently a 62-week process to 18 weeks.
At present, on average, it takes eight weeks for I N D to make the initial decision and inform the asylum seeker. If an appeal is lodged, it takes, on average, 17 weeks from the IND's decisions to the adjudicator's determination.
If permission to appeal against the adjudicator's determination is sought, it takes another seven weeks until the permission decision is made by the IAT. If 51 permission is granted, and there is a substantive hearing at the IAT, it can take another 30 weeks before the IAT decision is promulgated.
When added together, we have 62 weeks from beginning to end. That is far too long. There is too much delay. With so many layers, extra resource by itself is not a sufficient answer. But the system also needs to ensure that we have proper and appropriate judicial oversight of the system so that it is independent, thorough and fair. And we do not have that right yet.
I have listened carefully to the arguments put by the senior judiciary, including those of the Lord Chief Justice, the noble and learned Lord, Lord Woolf. I have also talked to my predecessor, my noble and learned friend Lord Irvine of Lairg, who has forcibly made representations about the Bill. I have read closely the arguments advanced in debate in another place, as well as the report by the Select Committee for Constitutional Affairs and by the Joint Committee on Human Rights.
I believe that we can have the necessary judicial oversight of the system by the higher courts and obtain the aims of speed and reduction in abuse. These are aims which I believe we share. There are a variety of ways in which we could achieve this, and I am confident that we can find a solution which meets the needs of all. I am sure that noble Lords will want to work with us.
In those circumstances, I am prepared to bring forward amendments to replace the judicial review ouster with a new system allowing oversight by the administrative court in those decisions. That system must ensure speed is increased and abuse is reduced. We need to concentrate on how these objectives should be achieved. The relationship between the single tier and the administrative court is important in this respect. No one disagrees that we should aim for a system where very few cases go to the High Court.
Reform of the appeals process goes hand in hand with reform of the legal aid system, including thresholds on legal aid, and by a clampdown on unregulated immigration advisers to put a stop to those whose only advice is how to exploit the system. We want to ensure that those who need advice because they have claims with merit get it. So, in parallel to the terms of the Bill, we will target legal aid better.
I shall discuss the individual clauses of the Bill. I have already dealt with Clause 14. Clauses I to 5 introduce new offences to tackle illegal immigration and abuse of the asylum system. The vast majority of people who claim asylum at UK ports do not have documentation, even though in many cases it was necessary for them to be in possession of a passport and travel documents in order to travel here.
Clause 2 sends out a clear message that this is unreasonable behaviour from someone who is seeking our protection, by creating a new offence of entering the UK without a valid passport without a reasonable excuse. The maximum penalty for such an offence will be a two-year prison sentence. The offence is not 52 intended to catch people who were not in possession of a document when they fled persecution, and to protect against that situation a reasonable excuse defence is built into the clause.
The Sexual Offences Act introduced a new criminal offence of trafficking for sexual exploitation. Clause 4 of the Bill introduces a new criminal offence of trafficking people into, or out of, the UK for the purposes of exploitation. The offence is aimed at those who traffic people into the UK in order to obtain labour or services through force or coercion, for the removal of organs, or for offences of false imprisonment. In line with the offence of trafficking for sexual exploitation, this offence will carry a maximum penalty of 14 years' imprisonment.
Clause 7 concerns the need for asylum claimants to be honest with us when they seek our protection. It sets out various behaviours which a deciding authority is required to take into account when considering whether to believe a person's claim. It covers situations where an applicant fails to provide a valid passport without a reasonable explanation, where a person has failed to take reasonable opportunity to seek protection in a safe third country that they have travelled through in order to reach the UK, or where a person has delayed making their claim without good reason.
Clause 8 will already be familiar to many noble Lords, as it was widely misreported by the press when we first announced the measure.
In fact, the policy is designed to encourage families whose asylum claims—and appeals—have been rejected, to take up the more dignified option of a paid voluntary flight home with some reintegration assistance at the other end, instead of having to enforce their removal and sometimes detain them.
It will be made clear that they cannot. as now, stay on indefinitely in the UK supported by the taxpayer, when it is possible for them to leave.
The provision in the Bill would enable the Government to withdraw support for families whose asylum claims have failed only if they are able to return but fail to take up the offer of a voluntary route home. This is designed to encourage more families to return voluntarily through packages that provide reintegration assistance. Returning voluntarily with some reintegration assistance, rather than having their removal enforced, is better for the families and would reduce the waste of public funds when they do not comply with enforced removal. The policy is not designed to make families destitute. It is designed to act as an incentive to return voluntarily before removal is enforced. There will be a robust process in place to ensure that support is only ever withdrawn as a last resort.
Clauses 9 to 13 propose to enhance existing enforcement powers. We brought forward an amendment to the Bill in another place—now Clause 11 of the Bill—which will enable us to require carriers to take copies of passengers' identity documents 53 before they travel. We do not intend to use this power until we have considered the results of a voluntary scheme which will take place later this year.
Clause 15 introduces a further degree of flexibility into the concept of non-suspensive appeals introduced in the Nationality, Immigration and Asylum Act 2002, by permitting a designated country as generally safe for certain categories of people where we cannot be satisfied that it can be designated as safe for everybody.
Clauses 16 to 21 deal with various problems relating to rights of appeal and to removal.
Clauses 22 to 26 aim to tackle unscrupulous or unregulated immigration advisers. We propose to give new powers to the Office of the Immigration Services Commissioner—the OISC—which currently oversees immigration services, in order to help him act against those legal advisers who are simply giving advice on how to defraud the system. This will complement new restrictions on legal aid.
Clause 22 amends the categories of advisers qualified to provide immigration advice or services.
Clause 23 gives the OISC a power, subject to obtaining a warrant, to enter and search premises where there are reasonable grounds for suspecting that immigration advice is being provided by an unqualified person.
Clause 24 creates a new criminal offence of advertising or offering to provide immigration advice when unqualified, which will carry a maximum penalty of a £2,500 fine.
Clause 25 proposes to remove the right of appeal to the tribunal where the commissioner has recorded a complaint on file for consideration when an application for continued consideration is received from an immigration adviser.
Clause 26 amends Section 86 of the Immigration and Asylum Act 1999 to place a duty on registered advisers to provide timely information to the commissioner in order to enable him to carry out his statutory functions.
We believe in opening up more legal and managed routes into the United Kingdom. Such managed migration is a source of great benefit to the United Kingdom, but it also provides great benefits to those who take advantage of opportunities to come to work, study or make a permanent home here. We believe it is fair to raise income from such situations, and are therefore proposing to introduce an enabling power to allow us to introduce over-cost charging for non-asylum applications. Clause 27 sets out that enabling power, but the charges themselves will be phased in over a number of years, possibly at differing rates, and not without wider consultation.
The Immigration and Asylum Act 1999 already allows fees to be prescribed for the consideration of applications for leave to remain in the United Kingdom, variation of leave to enter or remain or the fixing of a stamp in a new or replacement passport or 54 travel document. Clause 28 broadens that power to allow for a charge to be made when we transfer conditions.
This is a very important Bill which builds upon the major reform we have already undertaken in this area. It contains a number of tough but vital provisions to ensure that the public have continued confidence in the immigration controls of this country. This is vital work if we are to succeed in encouraging legal migration and successful protection and integration of genuine refugees, who should always be welcomed in the United Kingdom. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
§ 5.4 p.m.
§ Baroness Anelay of St Johns
My Lords, the noble and learned Lord the Lord Chancellor has signalled today that the Government have begun to listen to the chorus of criticism of Clause 14 in the Bill. Naturally, we shall all consider his words very carefully indeed during the course of the debate—just as, no doubt, he judged every single word very carefully when he drafted his speech for today.
Our asylum system must be humane and we must continue our long and honourable tradition of giving safe refuge to the persecuted. We recognise, of course, that the asylum system must be efficient; it is not fair to anyone, including the asylum seeker, if it is not. We contend that our current system lacks efficiency and is in danger of losing humanity.
The Home Secretary has maintained that this Bill—the Government's third asylum Bill in four years—is the final stage in the Government's planned approach to solving the problems of effective administration of the asylum system. I have to say that it does not look quite like that to anyone else. It looks like a patching job rather than a carefully crafted response. After all, the ink is barely dry on the Nationality, Immigration and Asylum Act 2002, and much of that Act still remains not implemented.
I say immediately that some parts of the Bill can be welcomed from this Bench. I will refer to those later.
The blot on the Bill to which the noble and learned Lord referred at the beginning of his speech—quite rightly, he opened with it—and which means that it cannot be supported in its current form is indeed Clause 14. It is an objection because it seeks to treat one class of people substantially differently from others. Everyone in this country should be subject to the rule of law and have the protection of the law. That is why it is wrong for the Bill as currently drafted to remove the supervision of the higher courts from the process of administrative tribunals. Access to proper judicial oversight is a cornerstone of our democracy. It should be available to all.
I shall outline our position on Clause 14 briefly now. but my noble friend Lord Kingsland will explain our proposals in detail later tonight. He will lead for these Benches on the appeal section in the Bill.
55 We agree that the Government face a problem with the appeals system. We accept that it could be streamlined to make it more efficient. However, the Home Secretary likes to blame lawyers and the courts for his ills. The noble and learned Lord the Lord Chancellor is always more circumspect.
We acknowledge that it is possible that some delay in the appeals process had been the result of abuse of the system by a few—a very few—lawyers who believe that they serve their clients best by spinning unmeritorious claims in the hope that their clients may never be removed. However, the real problems about delays in the asylum system have nothing to do with the lawyers or the courts. They stem from the Government's administrative failure to cope with the sheer volume of asylum seekers since 1997.
During that time, the number of asylum applications has at times threatened to overwhelm the Government's system. The process leading up to the tribunal stage is not only slow, but it is entirely in the hands of the Government, who run it. We know that too many decisions made by the Home Office executive officers are not made within the two-month period prescribed. The noble and learned Lord has referred to that already.
§ Lord Clinton-Davis
My Lords, is the noble Baroness asserting that everything before the Labour Government were elected was all right as far as this provision is concerned? Would she like to elaborate on that?
§ Baroness Anelay of St Johns
My Lords, asylum has always been a difficult issue. We have always accepted that. However, it has to be said that asylum applications trebled in the period after the Government took office, and they trebled because the Government were giving out a message that you could come here and not be removed. We accept—or certainly I accept, having sat through the proceedings on the Nationality, Immigration and Asylum Act — that the Government were making strenuous efforts to reverse that. It has been a long time coming. I, along with others, welcome the reversal in the numbers of applications last year. What I do not welcome is the fact that so many of the decisions that are made today are still wrong. What we want to do is to be able to welcome to this country those who have a justified reason for applying for asylum.
The Medical Foundation has referred to the fact that there are problems with decision-making in reports that were published just last month. It concludes that decision-making is often of poor quality, and that Home Office caseworkers regularly dismiss medical evidence of torture from asylum seekers. Amnesty International also found that the quality of initial decision-making is inadequate, highlighting in particular the lack of accurate information relating to the human rights situation in countries of origin, the need for objective consideration of issues relating to the applicants' 56 credibility, and inappropriate consideration of allegations of torture and supporting medical evidence.
Problems also arise at the adjudication hearing. We understand from Written Answers in another place that Home Office presenting officers attend far too few of them; apparently, it was only about 60 per cent. Surely it is not surprising that adjudicators often overturn decisions.
As I said earlier, we are prepared to recognise that the appeals system itself could be improved. We accept the proposal to amalgamate the adjudicators and the tribunal into one new asylum and immigration tribunal, which will hear appeals from initial decision-makers, but we do so only if three main conditions are met: first, that a single tier must have the appropriate membership and the ability to reach decisions fairly and effectively; secondly, that there must be a process of statutory review that is sufficiently fair and robust to make judicial review unnecessary; and, thirdly, it is vital to retain the normal appellate jurisdiction of the Court of Appeal and the House of Lords. If those conditions are not met, the AIT would become a self-contained system that is not subject to the rule of law. We would find that unacceptable.
We have already published our proposals. They were debated on Report in another place on 1 March and will provide a framework by which it would be possible for the Government to achieve their aim of streamlining the legislation while keeping it compatible with the Human Rights Act and, indeed, making it work properly. Therefore, the Lord Chancellor's announcement today is welcome to me, because it looks as though the Government are beginning to work towards a change in the system that they originally proposed. We hope that they will take up our solution of coupling statutory review with judicial oversight of the appeals. As always, I shall await impatiently the amendments to be tabled by the Government before giving them any outright welcome or rejection. They will deserve everyone's full consideration.
I said earlier that some aspects of the Bill are welcome. The Government have made them even more welcome by improving their original proposals in an acceptable way in another place. The Lord Chancellor dealt with the Bill in its totality. I shall just pick out parts of the Bill where I am in agreement with the Government, but that does not mean that I disagree with the rest by any means.
The Government introduced a few new clauses on Report in another place. There was not enough time to give them full scrutiny, so I hope that we will be able to give them full and detailed consideration in this House. That does not mean that there is a problem with them. At first sight, I think that they will be acceptable, but they need to be fully considered.
I shall refer first to Clause 2, which covers entering the United Kingdom without a passport. It is right that we should try to make sure that people who seek asylum here should not deliberately destroy documents in their possession that are relevant to their 57 claim in order to frustrate the system intentionally. However, we will need to consider the position of those who have never had travel or immigration documents or passports. Indeed, many people would be refused them in their country of origin for the straightforward reason that they are being persecuted there. We shall also want to consider the point, raised by the Refugee Children's Consortium, that amendments to the Bill in another place have, perhaps inadvertently, resulted in a risk that an adult will be prosecuted because a dependant child has no documents, even though that child became a dependant in the UK only after his arrival here.
We welcome Clause 4. which introduces the new criminal offence of human trafficking for non-sexual exploitation, with a maximum penalty of 14 years. In the threat assessment that it publishes on its website, NOS notes that human trafficking takes various forms, including exploitation as cheap, tied labour; for example, in illicit sweatshops producing counterfeit goods. According to NCIS, large numbers of illegal immigrants entering the UK in the future, as now, will be looking to work, but of course will not be entitled to work legitimately. Serious and organised criminals exploit that by controlling the recruitment and supply of illegal immigrants as cheap, unskilled and casual labour within the manufacturing, food-processing, construction, catering and agricultural labour markets. The illegal immigrants become victims of the system too.
I agree with the Immigration Advisory Service that there needs to be more joined-up thinking in the Home Office between the good work that is being done by the noble Baroness, Lady Scotland, in giving victims support in the criminal jurisdiction, and the policies of the immigration and nationality department on asylum. After all, we have in the past half-hour completed the Report stage of the Domestic Violence, Crime and Victims Bill. The Government make no specific reference there to support for victims of trafficking. We hope that they are covered by the provision in general.
In addition, we shall need to probe some of the amendments to Clause 4 that were added on Report in another place. The Refugees Children's Consortium is concerned about the new Clause 4(4)(d). While it improves the clause, it also unfortunately seems to allow some people who traffic children and families to escape prosecution. I am sure that that is not the Government's intent.
Clause 8 deals with the withdrawal of support. I recognise of course that it has been a highly controversial issue in recent years. We had a significant debate on the matter during the passage of the Nationality, Immigration and Asylum Act 2002. Press reports before the publication of that Act represented the Government as using the withdrawal of support as an incentive to force asylum seekers with children to leave the country or have the children taken into care. Neither the 1996 Act—under a Conservative government—nor the Government's 2000 Act, both of which withdrew benefits, were accompanied by such threats.
58 When the Bill was printed, it did not have such provisions within it. The immigration Minister, Beverley Hughes, gave specific undertakings in Committee and on Report in another place on the intention behind those proposals. On the basis of her undertakings, we accept them. On the basis that the proposals are not intended as an incentive to force children into care, we have not opposed them and we shall not do so now. We agree, as we always have, with the proposition that people who should not be here and who have exhausted the legal process should not be entitled to support from the state.
However, despite our support for some parts of the Bill, the Government should remain under no illusion about our opposition to their current proposals, as drafted, in the appeals section. They are seriously flawed. They make the Bill illiberal and grossly unfair to tens of thousands of people. I look forward to those proposals being improved considerably in this House.
§ 5.17 p.m.
§ Lord McNally
My Lords, it is a pleasure to follow the noble Baroness, particularly in the tone of her contribution. We certainly echo her analysis that the Bill as it enters this House is seriously flawed and illiberal. There are already indications that it will not leave this House in the shape in which it entered. The Lord Chancellor has already made one of his early concessions and the Government's charmer-in-chief, the noble Baroness, Lady Scotland. will wind up the debate.
One can understand why that team formation should have been put out. I can imagine Ministers and government whips looking at the list of speakers and seeing that the game was up. It is not often that one sees not just one former Lord Chancellor but almost two former Lord Chancellors willing to weigh in. I hope that we will hear the opinion of the noble and learned Lord. Lord Irvine, in the later stages of the debate on the Bill. A Lord Chief Justice and three other Law Lords are also in the line-up, plus what I respectfully suggest are some of the most formidable legal troublemakers in this House. Whenever I see from these Benches any one of my noble friends Lord Dholakia, Lord Avebury, Lord Russell, Lord Lester, Lord Phillips or Lord Thomas on the list of speakers, I know that the Government are in for a pretty rough time if they are touching on civil liberties or human rights. With all six of them there, I am looking forward to the next few hours.
§ The Earl of Onslow
My Lords, is not the fact that all the Law Lords are speaking a perfect example of why the Liberal Democrats were wrong to vote last Monday as they did?
§ Lord McNally
My Lords, as I said, most of the trouble makers are on parade today. I am grateful to have that reminder from one of the chief exponents of the art.
I start from the point made by the noble Lord. Lord Clinton-Davis. I hope that we all approach the matter with a certain humility. I entered the House in time for 59 the final 18 months of the Conservative government, and I remember the vigour with which those on the Labour Benches, then in opposition, attacked the failure of that government to get a grip on immigration and asylum. They said that the waiting list was a cunning ruse to ration immigration—it was pretty good stuff. However, as has been pointed out, this is the Government's fifth attempt in six years to get this matter right.
We must recognise that some of the simple political jousting that has gone on over this issue does not come to terms with the reality of a world which, as the noble Baroness, Lady Anelay, said, involves organised crime, people trafficking, the sex trade and exploitation of labour on a global scale. Any government would be faced with new problems. The task is therefore to make legislation that keeps faith both with the rule of law and with our historic role as a safe haven for genuine refugees.
The noble and learned Lord the Lord Chancellor made much in his opening remarks about the recent reduction in the number of asylum seekers. However, as a number of observers have said, that is partly or mainly due to a more stable international situation; certainly, it has been more stable in places that have hitherto been a great source of refugees. We must ensure that we deal with this matter with a little humility, given the various track records on it, and that we address the reality and not just the perception of the problem. Our media, and particularly the tabloid press, have played a pretty miserable role in whipping up xenophobia and intolerance in this area. It is not surprising, if people rely on certain newspapers, that MORI found that most people in Britain believe that immigration is four times its actual level.
Many clauses in the Bill will demand our attention—and I give fair warning that we shall deal with them fully in Committee. The three that have been highlighted include Clause 2, which will make it an offence to enter the UK without a passport. As the noble Baroness said, that throws up real problems about refugees who come from countries where the niceties of obtaining a passport are frankly absurd. Yet there is a valid point to make in that we must find ways in which to penalise those who wilfully abuse the system by destroying their authentic documents.
Clause 8 threatens failed asylum seekers with removal of basic support. The noble and learned Lord the Lord Chancellor tried to put a good gloss on that proposal, but most observers have seen it as an attempt to coerce asylum seekers to leave the country by effectively starving them out. It seems almost reminiscent of the old Speenhamland system and the old Poor Law that a society should inflict destitution on people. Again, I believe that the clause will be given a very rough ride. The Government are in effect raising the spectre of depriving families of their children as a means to an end. It is inhuman to do that to facilitate their removal from the UK.
Clause 14, as a distinguished jurist said, infects the entire Bill. We get different noises from different ends of this Palace. The Home Secretary is on record as 60 saying that he is sick and tired of spending valuable parliamentary time discussing Bills that are then overturned by the courts. As has been pointed out, that is not the line that the noble and learned Lord the Lord Chancellor usually takes in this House. We all read our newspapers and know of the Home Secretary's impatience with the judicial system, but we on these Benches will settle for the comment made by Shami Chakrabarti from Liberty, who said that judges looking over their shoulders was a powerful incentive to adjudicators to get things right.
I shall rely on legal and judicial opinions far more expert than mine to see just how much of a concession on Clause 14 the noble and learned Lord the Lord Chancellor has made today. At later stages of the Bill, we shall consider carefully the proposals put forward by the Conservatives on those matters. As the noble and learned Lord the Lord Chancellor has told us, the Government's justification for the measures is abuse of the system, yet we know that much of the delay is due to Home Office procedures.
Many people have concerns. I received a letter, which does not look as if it comes from a lobbying organisation of any kind, from a lady in Bristol who says that she is worried about the Bill because of the,exclusion of the judiciary from oversight of government decisions to refuse asylum … creation of a new offence of entering the UK without a passport, when it may be impossible for persecuted people to have one … removal of support from asylum seekers and the threat to take children into care. In many such instances the designation of the refugee's home country as 'safe' is in fact incorrect",and,the curtailing of legal aid. Without adequate legal advice the initial interview will come to wrong decisions".The lady goes on to say:I am concerned that this is an unjust Bill and does not reflect well the standards"—that we expect in Britain. We may hear longer speeches tonight about the weaknesses of the Bill, but I do not believe that I have read a better one.
§ 5.28 p.m.
§ Lord Woolf
My Lords, as I understand what the noble and learned Lord the Lord Chancellor said to us this afternoon, he has given us an unqualified indication that he is dropping from the Bill the ouster provision as to the jurisdiction of the High Court. On that basis, I warmly welcome the indication given by the noble and learned Lord the Lord Chancellor and Secretary of State. I am sure that his announcement will be greeted with approval by the judiciary and, indeed, everyone who is committed to the upholding within this country of the rule of law.
The judiciary share the Government's desire for there to be an efficient, effective and expeditious method of dealing with immigration and asylum appeals. Such a system must also be just and firm. That an appropriate system of appeals is necessary is beyond dispute. The statistics for successful appeals make that need clear beyond argument. What has to be achieved is a proper balance between the interests of the Government in upholding the law and avoiding 61 unnecessary expense and complexity and the interests of appellants. The system needs to be fair and just, but not readily capable of abuse.
The judiciary has already made a substantial contribution to improving the existing system. It has provided leadership for the existing first tier of the system, the adjudicators, and, therefore, the tribunal. Considerable praise is due to His Honour Judge Henry Hodge, who has given up his normal role of Crown Court judge to be president and to lead the adjudicators. Initially, Mr Justice Collins and, now, Mr Justice Ouseley—respectively, the past and present presidents of the Immigration Appeal Tribunal— produced dramatic improvements in both tiers of the appeal system.
Together with Mr Justice, now Lord Justice, Maurice Kay, they deserve credit for their contribution in establishing the statutory review under the 2002 Act, mentioned by the noble Baroness, Lady Anelay. Statutory review appears to be a success. It avoids abuse while at the same time retaining appropriate supervision by the High Court. I was pleased to hear the noble Baroness indicating support for statutory review.
To avoid unnecessary appeals to the existing Immigration Appeal Tribunal, such appeals are only with leave. However, what happens if the tribunal wrongly refuses leave? Prior to the 2002 Act, there was a steady stream of applications for judicial review to the High Court against the refusal of leave. Statutory review provides an alternative simple procedure that for practical purposes replaces judicial review, as a decision of the administrative court on Friday last confirmed. The virtue of statutory review is that the whole process is completed within two weeks, which is a remarkably short period in the context of the periods to which the noble and learned Lord the Lord Chancellor referred.
If the statutory review is successful, the case is remitted back to the existing Immigration Appeal Tribunal for a substantive hearing by judges with experience in immigration work. Because it is so expeditious, there is no purpose in making an abusive statutory appeal. The applications are dealt with on the papers, but it is still a process that safeguards appellants, as the results of statutory review indicate. No doubt, that is the reason that in the other place the all-party report of the Select Committee for Constitutional Affairs of 24 February recommended that the statutory appeal procedure should be allowed more time to demonstrate its merit.
The judges to whom I referred and I support this recommendation. I appreciate that the Government are reluctant to do that, but I have reservations about whether there is any more satisfactory solution. The alternative is to risk overwhelming the High Court with applications for judicial review, which would be more expensive and would lead to delay. Of course, the judiciary will still try to assist in finding a solution, the desire for which we share with the Government. But I fear that that may be difficult.
62 Finally, I turn to a related concern. Under the proposals contained in the Bill, the role of adjudicators within the single tier would be even more important than it has been until now. The adjudicators would be the majority of members of the new tribunal. Their role would be judicial. It is therefore a cause of some concern that Schedule 1(3)(1)(c) provides that a member,shall hold and vacate office in accordance with the terms of his appointment (which may include provision for dismissal)".I am unaware of such a proposal for "dismissal" ever previously being included in a judicial officer's terms of appointment. The Council of Immigration Judges is concerned that this provision will be used as a justification for members of the new tribunal being dismissed because of dissatisfaction with their decisions. Their concerns are exacerbated because of the novel proposal that it should be a term of their engagement that they have to comply with practice directions. Judicial officers observe practice directions if they are issued by someone with such authority, but I am surprised that it should be felt necessary to have a term of appointment to that effect.
Because of the important role of those members of the new tribunal, I urge the Minister to deal with these concerns in her reply. In particular, I hope that she will make it clear that the current arrangements that I have with the Lord Chancellor— that judicial officers, including adjudicators, will not be dismissed or removed without my concurrence—will continue to apply to the members of the new proposed tribunal.
§ 5.36 p.m.
§ The Lord Bishop of Oxford
My Lords, the Churches have a long-standing concern about the issue of asylum expressed, first, in relation to the successive Bills that have come before your Lordships' House and, secondly, in support of asylum seekers at the local level. The right reverend Prelate the Bishop of Southwark will speak more specifically about the Churches' involvement, as well as about the recent debate of the General Synod of the Church of England on this subject.
A bishop colleague, hardly noted for his modish views, once confided in me that he always supported the government of the day because government was always such a difficult, near-impossible task. The difficulties are large when it comes to asylum and immigration issues. I certainly sympathise with the Government's task of trying to achieve a fair and efficient asylum system in the present context. However, like many of your Lordships, I have grave reservations about a single-tier appeal system, despite the qualifications now built into the Bill and the previous assurances of the Government. Therefore, I was extremely glad to hear the noble and learned Lord the Lord Chancellor refer in his opening speech to the need for the necessary judicial oversight. That was very good to hear.
I was not quite sure whether there was a slip of the tongue or whether I misheard the noble and learned Lord the Lord Chancellor. I thought that I heard the phrase, "oversight by the administrative court", when 63 I was expecting the phrase, "oversight of the administrative court". If we are referring to the necessary judicial oversight, we are referring to oversight over an administrative court, not by the court itself.
At the Report stage in the other place, the Parliamentary Under-Secretary of State for Constitutional Affairs stated:It is vital to have early finality".—[Official Report, Commons, 1/3/04; col. 696.]He used the word "finality" three times in a short speech. In his opening statement, the noble and learned Lord the Lord Chancellor used the phrase "speed and finality". Indeed, it is important to obtain a clear, certain and, above all, correct decision as soon as is practical. Inordinate delay helps no one, least of all the asylum seeker. But there is a human tendency, not confined to the legal process in asylum cases, to go for early finality at the expense of other important considerations.
There are many occasions in life when we would just like to "sort it all out" or resolve some issue. We may feel frustrated and impatient. But, more important than early finality is the correctness of the decision. The desire for early finality cannot be allowed to bludgeon the imperative to arrive at a just decision. In cases that are confused, which many of them are, where it may be difficult to get at the facts, it may take more time and procedures to double-check decisions already made than we would like in an ideal world. But this is not an ideal world. Where there is the possibility of human error, time, however reluctantly, must be allowed.
The Government say that those making an appeal will have the benefit of legal advice and representation, but, as we now know, that applies to only five hours of work, except for exceptional cases. I shall not stress that point because I know that noble Lords more experienced than I will emphasise it. Clearly, that is totally inadequate in cases which are very often complex and difficult to represent.
Many noble Lords have pointed out that the proposed one-tier appeal system, with no possibility of judicial review or reference to a High Court, would be unique in our legal system. The Government have argued that in other fields of law, there is no desire on the part of appellants to delay matters. They want a decision as speedily as possible. In the case of asylum seekers, it has been suggested that there is a vested interest in delaying matters as long as possible, spinning things out through a whole succession of appeals. Undoubtedly, that does sometimes happen. However, the fact that some people are motivated in this way is not, I would suggest, enough to make a fundamental change to the very basis of English law. As I have already emphasised, speed, though important, is subservient to the overriding imperative to achieve a correct—that is, a just—decision.
If getting a right decision is the paramount obligation, we have to note the grave concerns expressed by a number of policy bodies about the 64 quality of decision-making in the first instance. For example, the Select Committee on Home Affairs in its recent report commented that:The real flaws in the system appear to be at the state of initial decision-making, not that of appeal".It went on to recommend that the implementation of a new asylum appeals system should be contingent on a significant improvement in initial decision-making having been demonstrated.
A similar point was made in the report of the Constitutional Affairs Committee. Together with this, the poor quality of legal advice and representation already noted—which again affects the quality of first stage decisions—is a concern. The Churches in Reading and the Diocese of Oxford believe that this has led to a number of incorrect and unjust decisions.
On the Government's figures, of the 33,000 appeals to the Immigration Appeal Tribunal between October 2002 and September 2003, 2,000 were allowed. The figures are not always easy to evaluate because they depend on what year we are talking about—not everyone is talking about the same year—and at what level the appeal is made. Certainly other bodies put the rate of successful appeal much higher than the Government. For example, it has been argued that of the one-third granted permission to appeal and heard by the IAT, 58.8 per cent are either allowed outright by the tribunal, or else remitted back to an adjudicator for a fresh hearing. Even on the Government's figures, where 2,000 were allowed, we are talking about a significant number of people—people for whom a correct decision may be a matter of life or death.
For these reasons, I share the reservations of other noble Lords about the Bill as it now stands, particularly about Clause 14, which creates something quite unprecedented in our legal system. Even if the first stage of decision-making is improved as the Government intend, there will be a need for an appeal system which is independent of both the initial decision-making process and the initial appeal system. A one-tier system, even when staffed by experienced judges, will still be reviewing its own decisions, and that pertains in no other area of our legal system. I was therefore very grateful to hear what the noble and learned Lord the Lord Chancellor said in his opening statement. Obviously we will need to look very carefully at the Government's amendment when it comes before this House again in order to ascertain whether it really builds in that extra safeguard for which many of us are looking.
§ 5.43 p.m.
§ Lord Clinton-Davis
My Lords, I am delighted to follow the right reverend Prelate the Bishop of Oxford, and I adopt many of the points which he has made.
In a matter of this overall importance, widespread consultation with all who have something worthwhile to contribute—some expertise—is absolutely essential. Yet there has been no consultation at all with the Law Society. I do not think there has been any consultation with the Bar Council either. Yet both have numbers of practitioners who play a vital part in 65 this whole apparatus. Have the Government any intention, even now, to repair that omission? After all, there is no reason for any disgruntlement on this score.
We know that many of these organisations have expressed their profound concern about various concepts advanced by this Bill, particularly on the question of ouster provisions, the role of the High Court, and the restriction of the right of appeal. This idea of removing a challenge to the proposed asylum and immigration tribunal by virtue of judicial review should be abandoned by the Government.
Why, these organisations ask, do we have so many immigration appeals in such a relatively short time? That question was raised by the noble Lord, Lord McNally, today. Which measures in the past have been found to be inadequate to justify this stance?
Despite these shortcomings, the claim made by the Government—that the number of asylum applications has markedly diminished—is wholly to be welcomed. There has been a substantial reduction in the number of cases waiting for initial decisions and new cases are largely decided within two months. On the other hand, the Government have pursued with vigour up to now the measures contained in this Bill. In consequence, some serious injustices could have resulted. I am pleased to say that the Government have had second thoughts, particularly about Clause 14.
I now turn to that clause. It is a pity that the Home Secretary was not more amenable in another place when this issue was decided. Not only was he not amenable, he was distinctly hostile. I am delighted that, on second thought, the Government are going to entertain some amendments—about which the House of Lords is likely to be very concerned. We will look at those amendments very carefully. However, I assume there has been no consultation at all with regard to that point. I hope that the Government will put that issue right because, as I said before, consultation is absolutely crucial with people who know something about immigration.
In my respectful submission, as drafted, Clause 14 should never have seen the light of day. Yet it survived all the House of Commons's surveillance in the Bill's various stages. This ouster clause has, in fact, been heavily criticised by the Constitutional Affairs Committee, the Bar Council, the Law Society and many others with specialised knowledge of this issue.
What was envisaged—the single-tier asylum and immigration tribunal—was designed to take over the role of the asylum and immigration system, with the High Court and Court of Appeal no longer carrying out any oversight of the tribunal. It was alleged that there is abuse and delay in the present system of appeals. Is that right?
There probably is some delay, we have heard it said today. But my noble and learned friend the Lord Chancellor has an obligation to spell that out. It is no good making allegations—he has to provide the House with facts. He has not done that. If on the other hand I am right, we have to be guided by what has happened in the vast majority of situations. I am not sure 66 whether I am right or wrong about this, but we have to ask ourselves what the statistics indicate. I submit that, on that basis, the Government have misled themselves.
In the House of Commons, the Home Secretary argued that only a tiny minority—he said about 3 per cent—of appeals succeeded. What he overlooked was that appeals to the Immigration Appeal Tribunal required permission to be granted in the first place. Of those, 11 per cent succeeded and 48 per cent were remitted for a re-hearing. It has been said before, but in the year between 1 October 2002 and 30 September 2003, the Immigration Appeal Tribunal allowed 639 appeals and dismissed 1,722. A small number were withdrawn. Thus there was a success rate of as much as 23 per cent, although the Home Secretary asserted that it was only 3 per cent. He was entirely wrong about that point, which is absolutely essential and goes to the heart of the whole matter.
The situation affecting appeals was amended by the Nationality, Immigration and Asylum Act 2002. Where permission to appeal was not given, there could be a statutory review. Because it was a paper-only review, it was very swift, as was said by the noble and learned Lord the Lord Chief Justice. Why on earth is it now alleged by the Government that that procedure has failed?
The real trouble, which I think that the Government now admit, is that the officials concerned with the initial decision-making have not made a very good fist of it. Indeed, that is the view of the Select Committee on Home Affairs. I therefore hope that the Government, in the light of experience, will not be averse to changing the situation. Other immigration Bills have been put before the House, but if this Bill demonstrates that it is in some material respects wanting, it is particularly important that the Government assert the confidence to change the system.
§ 5.53 p.m.
§ Lord Mackay of Clashfern
My Lords, it is a pleasure to follow the noble Lord, Lord Clinton-Davis. I have had the experience of his wisdom over many years in a number of different capacities. It is of some interest that in the Times this morning there was a report of an appeal by the Home Office, under the statutory provisions that it set up, that failed on the grounds that the Home Office did not have a basis for its appeal in the statutory jurisdiction. I think that I am right in saying that the majority of the judges who decided the case suggested that the Home Office might have a remedy by judicial review.
When I put my name down to speak in the debate, I noticed that, on the already tight form, the name of the noble and learned Lord, Lord Irvine of Lairg, was present and that the debate was to be opened by the noble Baroness, Lady Scotland. That was on Wednesday last week, so events have moved somewhat in a direction that I very much appreciate.
It is important to notice what has happened. The Government have decided to put forward a Bill that provides that no court should have any supervisory or 67 other jurisdiction, whether statutory or inherent, in relation to the tribunal. Not content with that, they went on to explain what the courts could not do. Proposed new Section 108A(3) of the Nationality, Immigration and Asylum Act is the vital provision, and reads:Subsections (1) and (2) …prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of … lack of jurisdiction, … irregularity, … error of law, … breach of natural justice, or … any other matter".Those who are familiar with that branch of the law will recognise those words as coming from a speech of the late Lord Reid in the case of Anisminic. Those were the grounds on which he held that the decision of the Foreign Compensation Commission in that case was not protected by the statutory ouster, which was elaborate, because the statutory ouster purported to protect determinations of the commission. However broad that protection is, if there is no true determination of the commission, there is nothing to protect. Alert to that problem, those who have put the Bill together sought to avoid it.
In my submission, that is a serious affront to the rule of law. Let me take a breach of natural justice. What the House of Commons has been asked to affirm by the Government—and has affirmed —is that the High Court should be prevented from intervening, even where there is a clear breach of natural justice on the part of the tribunal. But for that, the present law would of course allow the High Court to intervene to correct that breach of natural justice. That is what is required to be affirmed by each House of Parliament passing the Bill—that the High Court is precluded from intervening to put right a clear breach of natural justice by a tribunal. In my submission, that strikes right at the very heart of the rule of law. Anyone who read the Bill should have appreciated that.
I therefore find it disturbing, to say the least, that the Government thought it right to invite the House of Commons to pass the Bill in that form. As a footnote, I should say that when I first heard of the proposals for the abolition of the Office of Lord Chancellor and the setting-up of the Supreme Court, I was somewhat perturbed. When I read this provision in this Bill, I was much more perturbed, because I saw that the Government were apparently willing to subvert the rule of law in relation to people who might well be at risk of their lives from persecution in a foreign land.
In an article in one of what I should perhaps call the broadsheet newspapers, someone wrote suggesting that because asylum seekers and immigrants are not citizens of our country they should not be considered as requiring justice. I am proud to say that our courts over the years have not distinguished between foreigners and others in giving people proper justice, whatever their origins might be. I am proud to think that a very distinguished Scottish Lord Chief Justice enunciated that rule with great vigour.
68 The noble and learned Lord the Lord Chancellor has now undertaken to table an amendment to allow a statutory appeal, I think, to the administrative court— that is, to the judges of the High Court who specialise in dealing with administrative matters. We used to call it the Crown Court list; now it is called the administrative court because it deals with matters that arise in administrative law. The right reverend Prelate the Bishop of Oxford may have assumed that, when the noble and learned Lord spoke of the administrative court, he was speaking of the tribunal under the Bill, but I do not think so. Rather, he was thinking of a review by the judges of the High Court who specialise in such matters under the name of the administrative court. I am assuming that that is going to be provided, and no doubt the experiences of the Home Office this morning will perhaps instruct its view as to the nature of the appeal to be provided. Obviously, time limits can be put into a statutory procedure as well as any other safeguards, consistent with justice, that should exist.
In my submission, this request to the House of Commons to pass this Bill was a very serious incursion into the rule of law, and I am glad that your Lordships' House—for all its shortcomings and things that have been said about its procedures—is going to have an opportunity to put this right with, I understand, the full approval of Her Majesty's Government.
So far as the previous history of these matters is concerned, the noble Lord, Lord Clinton-Davis, asked my noble friend about that and, as a member of the government who were dealing with these matters before the present administration took over, I fully admit that it was an extremely difficult jurisdiction. We tried to improve it by bringing judicial officers into the appeal tribunal, so I am very conscious of the difficulty of the situation. One must be quite careful in a difficult situation, however, that one does not increase the difficulties and destroy justice in the mean time.
§ 6.1 p.m.
§ Lord Dholakia
My Lords, it is almost an impossible task to follow the noble and learned Lord, Lord Mackay of Clashfern; let me try a different angle.
We have had five such parliamentary Bills in the last 10 years, and as was predicted on all previous occasions, this will not be the last one. We are told that these are Government proposals on asylum reforms. They are some of the most draconian measures under the name of reforms. In essence, we are dealing with a system of justice the likes of which we have never seen before. We are creating a new offence of asylum seekers arriving here without proper documentation, and we are creating a class of people in our welfare services who will cease to be eligible for support. It is not just the asylum seekers but their families who will be ineligible for support and assistance.
A country has the right to determine its immigration policy, and the United Kingdom is no exception. But it has always been apparent that our policies have been based on xenophobia—the word was rightly used by 69 my noble friend Lord McNally. The events of the past few weeks have demonstrated total inconsistencies in the way immigration matters are handled. It is no good Ministers denying responsibility. The buck must stop with them. I have no problem with whistle-blowers. They perform important roles in exposing a highly bureaucratic and secretive government. Equally, I do not think that the Minister needs to apologise for the way cases which fall within our obligations are dealt with speedily. I am delighted that my party did not offer cheap publicity to the character who wrote to the BBC advocating a policy of nuclear attacks against Muslim countries. The question we should be asking is how, despite a policy of equality and diversity, a person of such extreme views came to be employed by the Home Office. Do we genuinely believe that he could take rational decisions on applicants seeking asylum in this country? This xenophobic attitude is well documented in the way we have historically handled immigration and asylum issues. We have now turned full circle from the days when the Labour Party set out its suspicion of foreigners.
Let me refer to 1951—that is, 53 years ago—when immigration from the colonies started. The then Labour government set up an interdepartmental committee to consider the possibility of legislative and administrative methods to deal with immigration. At that time, so preoccupied were the Ministers with the numbers entering the UK that the welfare and integration of newcomers was not even discussed. In fact, its key policy recommendation was:Any solution depending on an apparent or concealed colour test would be so invidious as to be impossible for adoption. Never the less it has to be recognised that the use of any powers taken to restrict the free entry of British subjects to this country would, as a general rule, be more or less confined to coloured persons".Such attitudes have not only shaped our immigration policies, but have also done much harm in the way we have conducted our race relations policies. In the 1964 general election, we had Peter Griffiths, the then Conservative victor in Smethwick. He captured his seat from Patrick Gordon Walker by using race and immigration in the most emotive way. He was called the parliamentary leper by Harold Wilson, and yet it was the Labour Party which, within two years of coming to power, actually deprived British passport holders of colour from East Africa of their right to enter the United Kingdom.
We then had, in 1968, Enoch Powell making the most divisive "rivers of blood" speech. Much water has flown since then and, to the credit of the British people, we have a culturally diverse society which has contributed so much to our prosperity. But now, more than 50 years after the first wave of immigration from the Commonwealth, the Home Secretary is actually questioning the benefits of diversity. Last week, he told a think-tank in America that there was powerful evidence that diversity is linked to falling standards in society and suggested that immigration can be damaging. He went on to say that the evidence that diversity correlates with a decline in social capital is sufficiently powerful that we need to address it.
70 These comments come at a time when the majority of the ethnic population is British-born, and their home is more likely to be Burnley, Blackburn or Brixton. It seems a strange way of conducting a debate about immigration and asylum issues. Immigration, despite the infrequent blips of communal incidents, has been a success story and we should be proud of it. It does worry me that, at the highest political level, we have failed to single out the benefits and have concentrated on the negative aspects of our race and immigration policy.
It is therefore no surprise to many of us that this damaging piece of legislation before us will do more harm than good. Look at Clause 2. This will make it an offence, punishable by imprisonment, for any non-British or EEA national arriving at a UK port, not to have a passport. I accept that it will be a defence for that person to provide a reasonable excuse to the immigration officer. Almost all practitioners have told us that the threshold set when defining "reasonable" has been high, and with the added proviso regarding the deliberate disposal of a passport, there will be, effectively, no defence. In reality, it is likely to mean that many asylum seekers would be committing a criminal offence on entry to the UK, punishable by a prison sentence of up to two years.
I need to ask the Minster to explain if Clauses 2 and 3 contravene Article 31 of the Geneva Convention, which forbids a signatory country from prosecuting, on account of their illegal entry, those seeking refugee status. Successive governments have introduced measures which make it impossible for asylum seekers to enter the United Kingdom. The UN convention is rendered meaningless if a person in search of protection and assistance is unable to reach countries which are party to it.
We are now turning on those who have already sought shelter here. We are the architects of our own failings in the way we have dealt with immigration. It has taken us 50 years to distinguish between skilled primary migration, economic migration and asylum seekers. At a time when we had a manageable list of applicants, we removed almost 1,500 civil servants from the immigration and nationality division. Surely there cannot be any surprise that the list became unmanageable?
I have no doubt that if we had a properly managed system there would be only genuine asylum seekers. We would not need accommodation centres, detention centres or policies that take away their basic rights under the Geneva Convention. An effective policy on skilled managed migration and one about employment or economic migrants would establish different routes of admission to the UK, without damaging those who are genuinely victims of torture and persecution.
This is why it is necessary—and there is public support for it—that a system should be designed that helps refugees and deals effectively with those who have been rejected. We have numerous concerns about the Bill and, as my noble friend Lord McNally has pointed out we shall certainly deal with them in Committee.
71 Let me start with a quote from the Lord Chief Justice, the noble and learned Lord, Lord Woolf. I know that the Minister has now indicated that there will be some concession, but the Lord Chief Justice was absolutely right when he said:Immigration and asylum involve basic human rights. What areas of government decision making would be next to be removed from the scrutiny of the courts? What is the use of the courts, if you cannot access them?".Let me give an analogy: we are the envy of the world in which our justice system operates. The lives of so many decent people, particularly in the third world, have been saved because their authorities follow our legal process. It beggars belief what would be the reaction of the British Government if dictators curtailed the judicial process as we seem to have done, or are thinking of doing, regarding the right of appeal.
In a democracy no one is above the law, not even the tribunals. Vernon Bogdanor, Professor of Government at Oxford, is right when he says:The clause … is not to be condemned merely because it will promote inefficiency. It is a constitutional outrage, and almost unprecedented in peacetime".What surprises me is how long it took the Government to suggest improvement.
At the root of my argument is the concern expressed by many practitioners about the poor quality of initial decision-making by the Home Office. If the process here were effective, the number of successful appeals at adjudication stage would be reduced.
When I ask for information on specific cases, I am denied it by the immigration Minister at the Home Office. Recently, I sought information about a detainee at his request. This is the reply that I received from the Minister, Beverley Hughes:I hope that you will understand that the Home Office records on individuals have to be treated as confidential. I appreciate your concern but as you are not acting for Mr. X, nor are his constituency Member of Parliament, I regret that I cannot give you any information regarding this case".Obviously, I am left to ask the Parliamentary Ombudsman whether the Minister is justified in withholding information from a Member of your Lordships' House. particularly when that information was requested by the person who was to be deported.
The point at issue is that the Government have imposed cuts in legal aid for immigration and asylum cases. Five hours for asylum case advice and three hours for immigration case advice will mean that in many cases applicants may be unrepresented. They are most vulnerable at a time when legal representation could make all the difference. Surely a right of appeal is vital in such cases.
There has been much adverse publicity relating to Clause 8, which seeks to deny financial support and accommodation, currently provided by NASS, to the families of asylum seekers whose appeals have been dismissed. No matter how the Government try to disguise the implication, it is clear that in order for a local authority to maintain its obligation to the welfare of children in such families, they may have to be placed into the care of that authority.
72 There is ample evidence to confirm that, even if an appeal has been dismissed, there are applicants who fear to return or cannot be returned. We now have a government that will ensure that families will be forced to live in poverty until they depart. Let me remind the Government that there are families who are prepared to face prosecution in their own homeland but the only reason that they have sought asylum here is to protect their children from harm.
More than anything else, I want the Government to lead on such issues, and not to follow public opinion shaped by tabloids. So far, I have seen very little evidence of that.
§ 6.13 p.m.
§ Lord Donaldson of Lymington
My Lords, many people, both within and outside this House, have condemned the ouster provisions of Clause 14 as a constitutional outrage and an affront to the rule of law. Suffice it to say that I wholeheartedly agree. Fortunately, it appears that the Government have now had second thoughts. We need not, therefore, stop to consider, as otherwise we would have done, what would and should have been the response of the judiciary had the clause been law, interesting and important though that would have been.
What is not about to go away is the problem of how to deal fairly and expeditiously with the vast numbers of asylum and immigration applications. In seeking a solution, it is necessary to identify at which level things are going wrong. Government Ministers, in particular the Home Secretary, point a finger at the courts. Thus, David Blunkett, at Second Reading in the other place, said that Clause 14,will cut out the terrible situation in which, despite the adjudication system, which weeds out initial decisions that are doubtful, we end up with months and sometimes years of prevarication before action can be taken".He said that Clause 14 would ensure that,we do not end up with judicial review after judicial review on claims that are not valid".—[Official Report, Commons, 17/12/03; col. 1603.]The Home Secretary seems blithely to ignore Section 101 of the 2002 Act, which requires would-be asylum seekers to seek leave to appeal from the Immigration Appeal Tribunal if they want to appeal a decision by an adjudicator. Since 9 June last year, if that leave is refused by the tribunal, asylum seekers can apply for a review of the refusal by the High Court. That is a paper application dealt with by a single High Court judge of the Administrative Court.
Between 9 June 2003 and 27 February this year, the High Court dealt with 552 such applications. The average delay between the time when the application was received by the High Court and the time when it was disposed of was 14 days—more accurately, it was 13.9, but I am prepared to take that as being 14. That is something of which the High Court can justly be proud. What is disturbing is that 20 per cent of those applications succeeded. In other words, the Immigration Appeal Tribunal should not have refused leave in more than 100 cases.
73 I do not understand the Home Secretary's reference to,judicial review after judicial review'",unless, when a decision was quashed by the High Court, the authority came back with an equally defective decision. It happened sometimes, but very rarely, when I was concerned with the work of the administrative court.
The alternative, which is slightly more charitable, is that the delays were such that, by the time the tribunal had come to reconsider the matter in response to the order of the administrative court, things had changed out of all recognition and a new situation had arisen which itself called for a review. I do not know, but I doubt whether we shall ever find out. Still less do I understand the Home Secretary's reference to,months and sometimes years of prevarication",unless he is speaking of delays by Home Office officials in reaching an initial "immigration decision" and/or delays in appeals to adjudicators, and/or delays in appeals from adjudicators to the Immigration Appeal Tribunal. Unfortunately, the Home Office has not given us any figures for such delays.
The caseload may be declining—I have certainly read that the Government make that claim but it must still be enormous. Between October 2002 and September 2003 an unknown number of immigration decisions were made, but no fewer than 70,000 of them were the subject of appeals to adjudicators. Of that 70,000, no fewer than 11,000 succeeded. That left some 60,000, of which half—33,000, to be exact—sought appeal to the Immigration Appeal Tribunal, where 2,000 were successful. If the adjudicator level of appeal were eliminated, I very much doubt whether the Immigration Appeal Tribunal could cope. I am sure that the administrative court would be under considerable strain because so many would be seeking judicial review, and, on previous figures, a great many of them would be right. There would also be the intriguing possibility that the Home Office would seek review on so many occasions as to become itself a vexatious litigant, but we must wait and see how that turns out.
Surely the remedy lies, not in tampering with the levels of appeal, but in a determined effort by training and supervision to improve the poor standard of decision-making by Home Office officials. Coupled with that, the number of adjudicators and of judges of the Immigration Appeal Tribunal may need to be increased. Asylum seekers are likely always to regard delay in being deported as a desirable aim in itself. Only if, and when, it becomes apparent to them that appeals are dealt with so quickly that the effort is not worth it will the flood of appeals subside.
Finally, steps should be taken to curb the wholly unjustified enthusiasm of some lawyers for promoting proceedings which they should know cannot possibly succeed. They have a duty not to pander to their clients' desire for relief from the tribunals and the court and, above all, their clients' desire simply to achieve delay. 'To that end, I suggest very strongly—I suggested it much earlier, although not in this 74 context—that the legal aid authorities should insist that in every case where proceedings recommended by counsel fail, certainly those strongly recommended, counsel should be required to give a free written opinion explaining why the proceedings failed. That might well be a salutary curb on such enthusiasm, which in some cases—I regret to say—is fuelled by the desire to earn fees in the process.
Whatever is the way forward, it is certainly not to be found in Clause 14. I am delighted to hear that Clause 14 is to be consigned to the bin rather than being reformed, because I doubt whether it is capable of reform.
§ 6.21 p.m.
§ Lord Newton of Braintree
My Lords, it will not surprise anybody looking at the list or hearing the speeches that have been made since this debate started that a mere non-lawyer rises with some diffidence to address the House against the background of what has already been said. On the other hand it is quite important, given some of the controversy that has occurred and the reports that we have seen in the press, that it should be made reasonably clear that this is not just a spat between lawyers or a protection of the interests of lawyers, however grand. There are real issues for members of the public, and not least for those who will be affected by the operation of these asylum and immigration provisions.
My rationale for taking part in the debate is in part that I currently hold the office of chairman of the Council on Tribunals. My predecessor was the noble and learned Lord, Lord Archer of Sandwell, so I am relatively rare in being a non-lawyer in that capacity. The council was set up by the Tribunals and Inquiries Act 1958 to keep under review the constitution and working of a wide range of tribunals. We now supervise some 80 different kinds of tribunals, including the adjudicators and the Immigration Appeal Tribunal. It is intended that the new tribunal will be under the council's supervision, and therefore my remarks are principally directed to the proposals under Clause 14.
I suspect that, like many others taking part in this debate, the remarks that I originally intended will be somewhat truncated, partly by the Government Chief Whip's injunctions about the time that we were supposed to take if the House was to rise at a respectable hour, and partly because I am also among those whose principal concern was the ouster provisions of Clause 14, which to some extent at least—though we cannot yet be quite clear to what extent—have been disarmed in advance by the noble and learned Lord the Lord Chancellor and Secretary of State. He recognised very wisely that that clause—or some aspects of it had trouble written all over it.
Without going on about it at length, I should also make the observation that when the Council on Tribunals responded to the very short consultation that preceded the Bill's introduction, it made it clear that it was not enthusiastic about the move to a single tier of appeal. It is not on that point that I propose to 75 focus most of my brief remarks this afternoon, but there did seem some irony that this proposal came forward not very long after the Leggatt report, Tribunals for Users, in 2001, which recommended that there should be a two tier system for tribunals generally, with the observation that:the appeal body needs to give genuine coherence to the development of the law, and promote consistency effectively at its own level and in the first tier tribunals".In that sentence alone lie the reasons for our concern about some aspects of the proposal.
I do not want to make a meal of that this afternoon, merely to say that obviously any difficulties arising from the fact that this was now to be a single tier would be compounded if access to the higher courts were restricted in the way that appeared to be proposed by what was—when this Bill was published—the most comprehensive ouster clause ever devised.
I observe in passing that there was again some irony for the Council on Tribunals, since the Tribunals and Inquiries Act 1958—under which it was set up—provided an avenue of appeal from tribunals to the courts on points of law in cases where none had existed before. It rendered ineffective all the then subsisting statutory provisions purporting to oust the courts' supervisory jurisdiction. Against that historic background—and the reasons for the changes then made—it would be no surprise to anybody that the ouster clause in the Bill, as it stood, caused the Council on Tribunals serious concern because of its implications for tribunals generally. I made that clear when I was invited to give evidence to the Constitutional Affairs Committee in January. We submitted a memorandum to the committee setting out our concerns, and I can do no more this afternoon than endorse the committee's observations in that regard.
We need to be clear that the major practical issue is whether the provisions in Clause 14 for review of tribunal decisions by the tribunal itself, and for references of points of law by the president of the tribunal to the appellate court, provide adequate protection against incorrect decisions. I can only say, without elaborating in view of the time available, that in the council's view they do not.
I echo words that have already been expressed by others in this debate. All this might matter less if the issues at stake for individuals were not so serious and if the quality of initial decision making in the Home Office were better. But, at present, all too often a case receives full and proper consideration only when it comes before an adjudicator on appeal. Even then, problems frequently arise through poor preparation and the absence of a Home Office presenting officer. A further consideration is the recent restriction of publicly funded advice, assistance and representation in immigration and asylum cases. All these factors make it all the more important that there should be an adequate mechanism for appeal decisions to be reviewed.
76 At the council's request, some little time ago I wrote on its behalf to the noble and learned Lord the Lord Chancellor and Secretary of State, to express its continuing concern about Clause 14 and particularly the ouster provision. I hope that the council's views played some part—possibly not quite as much as the views of the noble and learned Lord the Lord Chief Justice and others—in what the Minister said at the outset of the debate this afternoon. I very much welcome the indicated concession. Like everybody else, I shall study it with care, but I genuinely hope that it will provide a real answer to the concerns which I echo, building on what was said by noble and learned judges and others earlier in the debate.
§ 6.28 p.m.
§ Lord Avebury
My Lords, what the noble Lord, Lord Newton of Braintree, said about the Leggatt report is extremely important. We should consider carefully not just Clause 14 but also whether we are now prepared to scrap the two tier system which has stood the test of time and is under severe criticism now only because, as the noble and learned Lord the Lord Chancellor said at the beginning of his remarks, there are long delays and people are spinning out the process. But that is in the context of 2003 and we are changing very rapidly as a result of steps already taken: non-suspensive appeals, juxtaposed controls, new visa regimes, the forthcoming enlargement of the European Union—which removes many of the countries from the list of those that provide asylum seekers—introduction of fingerprinting in Sri Lanka and the extension of that process to the countries of east Africa in 2004. So, there will be, irrespective of anything that we do in the Bill, a substantial fall in numbers—all the way through the process, from initial applications to appeals to the adjudicator and then, if we did nothing, appeals from the adjudicator to the tribunals.
The only thing that does not seem to be going down—I agree with the noble and learned Lord on this—is the number of undocumented arrivals, which remains stubbornly in one place, in spite of the successes that we have achieved on Eurostar. At Dover and Heathrow, particularly Terminal 2, it is still a problem. As the noble and learned Lord the Lord Chancellor said, the Government are considering proposals for carriers to copy the documentation held by passengers at the time of boarding, so that the identity of a person can be established by comparing his photograph in the document copy with the undocumented passenger himself, when he arrives. Presumably, that would be done initially at selected pilot departure points, so that we could see how difficult it is to match up the information. I draw to the Minister's attention a letter that we have received from British Airways urging that the proposal be confined initially to carefully targeted and specific routes, so that we know how it works and can minimise the burdens that it imposes on the carriers.
It is true that the number of appeals to adjudicators went up between 2002 and 2003, as has been mentioned, but that is because they were reducing the 77 backlog. In the last three months of 2003, numbers were beginning to fall, and that trend is also certain to continue in 2004. In the absence of the Bill, that would mean fewer adjudicators. I hope that the opportunity will be taken to improve the quality of adjudicators, as well as the quality of first decisions. Neither is satisfactory, considering the success rate of appeals at both stages. That reduction would also feed through to the tribunal, if the present regime were not going to be altered by the Bill. The Government accept that, of the one-third of applicants who are given leave to appeal to the tribunal—they are only rough estimates, because the cases are not tracked through the system— three out of five are either allowed outright or remitted to an adjudicator for a fresh hearing.
The House is of one mind in wanting to see decisions on applications made as quickly as possible. However, if the initial decisions were more reliable, as has been said, many people would accept the adjudicator's decision, fewer applicants would get leave to appeal to the tribunal, and the upheaval in the system caused by the Bill would be unnecessary for the sake of a small proportion of important cases in which permission would still be given. In another place, Mr David Lammy told the Chairman of Standing Committee B that, of 78,000 adjudicated determinations before September 2003, 33,000 were appealed and, of those, 11,000 were granted. Miss Kate Eshun, a former adjudicator and now vice-president of the tribunal, told the Select Committee on Constitutional Affairs that the level of appeals rose dramatically because,there were cases in which the decision written by the Home Office was very poor and, therefore, without the aid of the Home Office presenting officer at the hearing, the adjudicator was more or less left in the dark".The evidence given by Sir Duncan Ouseley to the Select Committee on Constitutional Affairs in another place is also of some importance. He said that one-third of those who applied for leave to appeal to the tribunal and to whom it was granted cannot be said to have abused the system. Either they have an arguable point, or they have, at least, been told by their legal advisers that they have an arguable point. For the two-thirds who are refused, he said, the time taken to process their cases is a measure of the delay created by the existence of a second tier, which, as the noble Lord, Lord Newton of Braintree, explained, is necessary in every other context.
Sir Duncan Ouseley also said that applications for statutory review of refusal of leave to appeal to the tribunal under Section 101 of the Nationality, Immigration and Asylum Act 2002, which was mentioned by the noble and learned Lord, Lord Donaldson of Lymington, were being made at the rate of 35 a week and were being turned round within a week or so by the administrative courts. That alternative system, which the Government promoted enthusiastically two years ago and has operated for less than a year, is being confined to the dustbin, along with the existing tribunal, although it is working well.
Since adjudicators have been reducing the backlog, cases are still coming to the tribunal at the rate of 1,000 a month. At the end of February, there was a backlog 78 of 5,000 cases. That is causing delays. However, in the steady state, the tribunal would get 5,000 cases a year, a number that it can easily accommodate. From that analysis, it is clear that, with regard to the speed of decision making and the cost of the process, 2003 would not be a useful guide to future policy. No sufficient test has been done on the system in place, with the improvements that are acknowledged to be necessary by all concerned.
Before I close, I shall tell your Lordships about the case of a person who appealed through judicial review, Jacqueline Konan and her little girl, Thelma. The case was heard before Mr Justice Collins on 21 January. The judge said:It is a cautionary tale since it shows that … officials"—the Home Office officials—and the appellate authorities can be wrong and that there is a need for judicial assessment … If the possibility of judicial review had not existed the claimants would wrongly have been returned to the Ivory Coast".The judge described the Home Office's refusal to release Jacqueline and her little girl, Thelma, as "inexplicable". I certainly found it so, and I had written on 10 occasions to the Minister, Beverley Hughes, or to the noble Lord, Lord Filkin, as well as to officials and adjudicators, up to the point at which the mother and daughter were finally released on bail, after 190 days in custody.
I put it to the Minister on 5 November that there were lessons to be learnt from the case, and I outlined what some of them were. I added that I hoped that she would not adopt the tactic so often adopted by the Home Office when faced with awkward problems and delay her response for as long as possible. By January, the Minister had not replied, so I wrote to her again, calling her attention to Mr Justice Collins's decision that Jacqueline and Thelma's detention had been unlawful and that Ministers' continued refusal to consider release was manifestly contrary to public policy.
Things can go so badly wrong, even when the case has been dealt with by an adjudicator and has been the subject of extensive correspondence with Ministers. By scrapping judicial review without, at least, replacing it with as effective an alternative, Parliament would make it inevitable that, sooner or later, many other Jacquelines who have been failed by the system were sent back to persecution and even death, because that right had been withdrawn.
§ 6.38 p.m.
§ Lord Parekh
My Lords, I see the need for the Bill and welcome many parts of it, but I am uneasy about several other parts. I shall concentrate briefly on three disturbing features of the Bill.
Many noble Lords have spoken eloquently about the unified appeal system and the ouster of judicial review that is proposed in the Bill. I share their unease. We must all acknowledge the problems involved with endless appeals, with all their cost and delay, and we can also concede readily that a system of endless appeals in which we cannot get rid of those who have 79 failed could easily make Britain a soft option and attract or invite dubious asylum applications. However, I do not think that the unified appeal system proposed here is the answer. As many noble Lords have said, it violates the rule of law. It also violates the principles of natural justice. If we consider the past few years, we will see that the system of judicial review has often been the only hope for securing justice for a large number of people. Although I cannot calculate it, I can imagine that many lives have been saved, simply because the system was in operation.
In the current system, one in five decisions is overturned at the initial decision stage—22 per cent. This figure rises to as high as one in three when Somalis and Sudanese are involved. Even when an appeal is made and the decision is taken by the Immigration Appeal Tribunal, 15 per cent of cases are either overturned or referred back by the courts. All this goes to show that judicial review has been the only guarantee of justice for victims of persecution.
I know that the Government intend to deal with this by improving the quality of decision making. I welcome that, especially the efforts being made, for example, to consult the United Nations High Commissioner for Refugees, and to introduce training input by organisations with specialist skills and so on. I am sure that all this will improve the quality of decision making. I also welcome the formation of the Country Information Advisory Panel, on which I have been invited to serve.
But that only goes to show that the quality of decision making will improve. It does not guarantee that it will be perfect or that it will not be open either to abuse or to mistakes. Why not, therefore, retain the system of judicial review and see what happens after a couple of years? If the new system the Government want to put in place works well—one with improved decision-making and the input of the Country Information Advisory Panel—we shall be able to decide after a couple of years whether many appeals have been made against its decisions and thus whether it has succeeded. At that point we might take a second look at the process of judicial review. Until then, I see the case for it as inviolable.
I turn now to the proposal in the Bill to deny benefits to failed applicants. The hope here is that this will encourage them to depart voluntarily. I am afraid that I do not see the logic of this argument, or the ethics of it. As long as people are here, it is simply unworthy of us even to think in terms of denying them any form of maintenance. Although it may not be our intention to starve people into submission, this move will be seen as such by those outside and might have that kind of impact on the people involved. In any case, I am not entirely sure whether it has any chance of working. Children could be taken into care, which only makes them a problem. Devoid of parental support, children in care are not likely to do any better and therefore will become a problem for the Exchequer and the Government.
80 I turn briefly to my third point. Time is moving on and I know that other noble Lords wish to speak. I am a little surprised that not much has been said about Clause 27, dealing with the fees which the Government want to increase. These fees relate to the application for a certificate of entitlement to the right of abode and an immigration employment document. The Government argue that fees could be charged considerably in excess of the administrative costs involved because the claimants, if successful, are likely to benefit from the successful application.
I know that the Home Secretary has promised to consult before laying the order before Parliament. I should like him to think very carefully about this measure. It would affect nearly half a million people. If successful, those people will get jobs and benefit us through the taxation system, therefore I do not see why they should be made to pay additional costs.
I also want the Government to appreciate that we already benefit from a high number of trained immigrants. Doctors and IT specialists come to us fully trained. Recently I produced some figures showing that if we had to train the 5,000 odd doctors who come to us from the Indian sub-continent here, that would cost us somewhere in the region of £900 million. A doctor who comes here fully trained saves us around £225,000 in training costs. Multiply that by 5,000 and you get an astronomical figure for the contribution made by the poor people of the Indian sub-continent. Given that we derive all these invisible benefits, I cannot understand why we would want to take into account such benefits as people may gain in the future by trying to collect more money through increasing the fees on their applications.
I am also worried about the increased fees that foreign students have to pay in order to extend their visas to complete their courses. Although it has now become an established practice, reference is made to it in the Bill and so I feel entitled to talk about it. This is punitive. Already overseas students pay hefty tuition fees. Many come from poor and low-income families and have to save every penny in order to receive a decent education here. Experts have calculated how much higher education fees contribute to this country. It brings in something in the region of £7 billion a year. Students who study here also generate an enormous amount of goodwill when they go home, thus providing a valuable network. Good sense and generosity require us to resist the temptation to make a few thousand pounds either by increasing the fees that students have to pay or by increasing the fees to be paid by those applying for employment and so forth.
I end by making an appeal to the Government. As the noble Lord, Lord Dholakia, rightly pointed out, we should not allow ourselves to be panicked into taking decisions on a question of this magnitude. The number of asylum seekers is declining. Given that seeking asylum takes place largely as a consequence of political and economic instability in certain parts of the world, it is therefore not a permanent feature of the global landscape. Some asylum seekers do beat the system, but then who does not? Many of us have done so over the centuries, and those who colonise other 81 countries have not refrained from doing so either. I want to suggest that while desperate people struggling to outsmart the system deserve to be restrained, they must also be approached with a certain measure of compassion. Our asylum policy must be firm but compassionate.
Increasingly, as Bill follows Bill and legislation follows legislation, we have concentrated on tightening up the system, making it even firmer, rather than showing a little compassion. Let us ask ourselves this. My noble and learned friend the Lord Chancellor has said that he is prepared to make concessions on the ousting of judicial review. But the question that puzzles me is this: how did the ouster of judicial review get there in the first instance, and why is it that those of us on the Labour side feel that we can even countenance a step of this kind? That is what worries me. If we are not very careful, the constant tightening of the screw and the constant sense of panic will easily coarsen our moral and even legal sensibility, trapping us into taking decisions of which we might be ashamed a few years from now.
§ 6.47 p.m.
§ Earl Russell
My Lords, we are not usually in the habit of thinking about Aristotle and Jo Grimond in the same breath. But in the 1980s Jo Grimond made a very interesting remark—that governments tend to suffer from a legislative stammer. They keep on and on legislating about the same subject. At the time it was trade unions, then it was local government, then universities and now it is asylum. When governments do this, it usually means that they are trying to do something which cannot be done. Aristotle remarked that it is essential, in passing good law, for legislators to go home and be subject to the laws they have made. Not many people in this House have been asylum seekers. When we listen to those who have, we hear immediately a wave of comprehension that we do not get from many of the speeches here.
I think that asylum policy is failing because it is directed towards achieving something which is, first, not under the Government's—control that is, reducing the number of applications. The biggest single increase in applications in my time was caused by the break-up of Yugoslavia. I have no inhibitions about blaming Tony Blair, but I do not blame him for that. So the Government are trying to do something they cannot do, and which would not be desirable if they could do so.
The central assumption of the restrictionist case is that the fewer people we have coming in from outside, the better the race relations that will result. I happen to have the honour of being president of the Liberal Democrats in the London Borough of Brent, where we have more Uganda Asians than in Leicester.
The borough is, I think, just behind Newham as the greatest concentration of ethnic minorities in the country. What is vital about Brent is that it is not just two or three groups. It is a mixture of everything one can think of. At the end of a by-election, one surname usually sticks in one's memory. From Brent it is 82 Ratnayake-Brederode, which is not merely cosmopolitan, but also a reminder of the days when Sri Lanka used to be a Dutch colony. I do not think reducing racial diversity is necessarily conducive to racial harmony.
I am delighted by what I hear about Clause 14, but since the compromise is not yet finished, it is necessary to say just a few words about it. If it had been successful, it would have had a claim to be regarded as the worst threat to the rule of law since Magna Carta. I know that plenty of other things can claim that; one could have a seminar on it. I say that of the clause, not because of the sharpness of its wolfish teeth, but because of the Jermyn Street smoothness of its sheep's clothing. I doubt whether 5 per cent of the population realise that there is a threat to the rule of law at the moment.
The device of making the arbitrary court the instrument of the rise of arbitrary power is, in its perverse way, nothing short of brilliant. As the noble and learned Lord, Lord Mackay of Clashfern, made clear by using Anisminic, it would also have the effect of bringing in an entirely positivist view of the law. It would cut us off from the wisdom of the laws of generations before Parliament, and from Glanville and Bracton. It would also cut us off from the 14th-century method of discovering the intention of Parliament by looking at the basic principles of the common law, from which a great deal of our present legislative thinking comes. That would be a very great loss, and all in order to avoid a delay, which—I agree with others who have spoken—emanates more from inside the Home Office than elsewhere.
For example, I once spent a large amount of time on the case raised by the noble Lord, Lord Alton of Liverpool, where the Home Office insisted that scars that the applicant claimed were the result of torture were in fact self-inflicted. Those scars were on his back. The Home Office fought that through several meetings with deputations of MPs. It is not in trouble for consumption of time.
On another occasion—a case discovered by Asylum Aid—an applicant was told by an adjudicator that his claim that he had been soaked in urine, beaten, stripped naked and locked in a cell by himself—all of which, he claimed, constituted torture—was so incredible that it deprived all the rest of his testimony of credibility. That seems to me to be a deliberate delay, and one for which I blame neither the applicant nor his lawyer.
The same goes for destruction of documents. From the same volume of Asylum Aid, Still No Reason At All, published to go with the previous Bill, the Home Office refused an application because the man came on his own passport and therefore, it said, could not possibly be in any danger. When the Home Office says all this stuff about destruction of documents, it knows better. I came to know quite well one person who came here from Pristina. She saw her house in flames, and she saw Serbs setting fire to it, but she could not prove that they had actually burnt her documents. Under 83 this doctrine of burden of proof, she could not make her case stand. It is, I think, a mistaken use of burden of proof.
The total denial of support is something that, frankly, I am astonished that any civilised government use as an instrument of policy. If I may, I should like to tell the House of my last fully rational conversation with my wife. She had been told she was dying in terms that I witnessed, and I can testify they were plain. She chose not to take it in, so I had to make it plain to her. When this had been done, and when all those things had been said which must be said, we had a few moments of lucidity left. I told her about an incident on the day I brought her in to Casualty.
When I went out for my breakfast coffee at half past three, it was cold in the way it only can be in January off Gower Street, the wind creeping into every doorway around. I saw a man crouched in a doorway like a dog, with his cap over his face to keep the wind off. I went up to him and gave him a pound. He said, "Oh, thank you. You are the first person who has come near me all day". I told my wife this, and I said that there was she, inside, full of fear and full of pain, but receiving care and warmth, and with people prepared to come round her with love and affection more than any hospital room could hold; and there was he, apparently in good health, but knowing that nobody cared whether he was alive or dead. I said that I wondered which of these people I would rather be. After a long pause, she replied to me, "Yes. I think perhaps you are right".
If that comparison can be made by someone who is on the point of death, one has here a policy which no civilised Government should ever adopt.
§ The Lord Bishop of Southwark
My Lords, it is never desirable to follow the noble Earl, Lord Russell. I would much prefer to continue to reflect on what he has had to say to us.
Recent legislation has both dispersed asylum seekers around the country and put some into destitution. This has led many Churches in different parts of the country to have first-hand experience of encountering refugees and asylum seekers. Their response was, at first, cautious; then, occasionally, it was brave in the face of local, sometimes extremist, opposition. Many times it deepened concern about legislation such as that proposed to your Lordships' House today, and a recent debate in the General Synod very much reflected this concern. Let me quote from a letter sent to me from Sister Maureen Lynch, a missionary sister and a worker at Twickenham Refugee Welcome Centre. She writes this:I am dismayed at the devastating impact Government policy is having on people recently arrived in the UK who are seeking asylum here. I have witnessed the hardships caused by Section 55 of the Nationality [Immigration] and Asylum Act 2002. These people are not allowed to work. Many of them are completely destitute relying on help from other desperately poor asylum seekers, friends, charities, or are sleeping rough. I believe this cruel piece of legislation should be repealed".84 Church people such as Sister Lynch all over the country have become more aware of the issues and challenges asylum seekers and refugees face, because they are there on our doorstep. With their fellow citizens they engage in the political arguments for, of course, this is a deeply political issue. But for us this is also a pastoral and perhaps a prophetic challenge. People fleeing oppression and persecution arrive at our ports and airports—vulnerable, desperate, in a strange and bewildering place—and find themselves confronted with processes that they may not fully understand or trust. Such people come to our church halls and vicarages because there are very few other places to go.
I live near to the Home Office immigration centre in Croydon and within yards of the Spires Centre through which local Churches provide resources for the helpless and the homeless. Day by day we are not seeing worthless scroungers or economic migrants ready to manipulate a lax system. We are seeing men and women who are anxious and frightened and trying to keep body and soul together in a strange land. Churches, faith communities and concerned people are providing food and clothing banks, language and induction classes, housing and legal advice, translation services and befriending. They are filling a gap in provision which the Bill will, I fear, worsen.
Clause 8 proposes to remove benefits from those whose claims have been turned down. One can see the hard-headed reasons for the proposals, but one must doubt whether such an action will diminish people's determination to stay.
As your Lordships have heard, both the Home Secretary and the Minister in another place have insisted that leaving families destitute or taking children into care is not the Government's aim. Provision to ensure that this undesired aim is not achieved by default would therefore be welcome. Along with other noble Lords, I look forward to examining the robust provisions to avoid this calamity, as promised by the noble and learned Lord the Lord Chancellor in his introductory speech. Any government would be most unwise even to appear to bring in legislation in which it could be alleged that children were being used as a lever upon families to return to countries in which they fear to live.
While referring to children, will the Minister confirm in her response to the debate that under Clause 2(5)(c) being an unaccompanied child would always in itself be reasonable excuse for not being in possession of immigration documents? Surely it is not the Government's intention ever to criminalise such children.
Clause 8 raises concerns which I might call humanitarian. Turning to Clause 14, the concern would have become almost constitutional had not the noble and learned Lord the Lord Chancellor sent earlier signals of considerable amendment.
85 In the debate in your Lordships' House last Thursday, the noble Baroness, Lady Hayman, remarked that the SIAC was like,Kafka played by the rules of cricket".—[Official Report, 11/3/04; col. 1356.]The people of this country are a free people of a free nation built on the rule of law. It is not only lawyers who are concerned about this.
I can understand why the Government wish to speed up the appeals process and prevent its use as the means to justify the end of an indefinite stay. I also acknowledge that the Government have worked hard in improving the speed at which decisions on asylum claims are taken, most now within six months. But the Home Affairs Select Committee at the end of January emphasised the need to combine efficiency with fairness. This is also the concern of these Benches.
We need, at least, to raise the quality of early decision-making. We need to know who will make those decisions and how; and with what interview procedures, information and interpreters the decision will be made. What will be the training and professional development for those engaged in such important work?
We must seek a system which is rigorous, evenhanded and, above all, fair. A system which has all the appearance of quasi-legislation but which cannot be challenged in a court of law would surely give your Lordships pause for thought. Such a system would not work for it does not work in parallel situations.
I chair the governing body at Cuddesdon Theological College, a long-established theological college for training clergy associated with the University of Oxford. We have a long-standing twinning arrangement with a theological college in South Africa whereby two ordinands exchange places for a couple of terms every year. But not this year. The British ordinand was fine, but when the South African ordinand, carrying all the necessary documents, went to the British High Commission he was refused a visa. Why? He obviously was not a genuine student because he called the college "Cuddesdon" when its full name is Ripon College, Cuddesdon, and he did not know the timetable for the first week. On that standard of judgment we would have no students at all. But his application was refused and his appeal swiftly dismissed without any contact with the college.
The starting assumption is that the person seeking entry is lying. This skews the initial decision and requires an adequate appeals process. In this climate, the present system seems not so much excessive as necessary.
I understand from the speech of the noble and learned Lord the Lord Chancellor that the Government are prepared to make a move from their proposed position on Clause 14. Along with your Lordships, I look forward to examining the amendments that he promises.
The Bill comes before your Lordships' House when inflammatory reporting in some sections of the press has exaggerated public alarm and demonised claimants. In October last year, the Press Complaints 86 Commission warned that inaccurate, misleading or distorted reporting may generate an atmosphere of fear and hostility that is not borne out by the facts.
I am no Thomas Gradgrind, but I appeal to your Lordships' sense of the importance of facts in asylum cases and the damage done to humanity where an appeals system risks being ignorant of the facts and a welfare system acts in flagrant disregard of them. For the local Church, ignored facts soon show up in broken lives. Let us work hard to enable the Bill to emerge as an Act worthy of a free Parliament, which has always led the way in working for a world community built on the foundations of justice and humanity.
§ 7.7 p.m.
§ Lord Brennan
My Lords, asylum and immigration are controversial and highly charged issues. Debating them deserves—and I hope we will get it today—clear and objective thinking. The Home Office has an immensely difficult task in this area. It seeks a substantial reduction in immigrant numbers, at manageable cost with the least legal restraint. The objective has in-built tensions, the components of which, some might say, are irreconcilable.
The objective has four stages—entry, processing, decision and appeal. In assessing the task and determining the priorities, where does appeal come? At the end. The least important volumetrically; the least significant economically; and the most important in terms of justice.
Entry has been the subject of serious comment by the Home Affairs Committee in the other place; processing has been the subject of regular comment by our courts and even by the Chief Inspector of Prisons; and decision has been the subject of comment by the Constitutional Affairs Committee, which has called for better decision making. But appeals? Until this Bill arrived, in the legal world in which I practise I knew little of this degree of concern in the entire immigration system. But the issue has been raised and so we must deal with it.
Clause 14 conflicts with a basic principle of the rule of law, one eloquently enunciated by the previous Lord Chancellor, my noble and learned friend Lord Irvine of Lairg, when he said that English—for that we can read "British"—courts attach great importance to the citizens' access to justice, and judges have now come to speak of this as a constitutional right. What is this constitutional right in relation to appeals in the asylum and immigration system? It is judicial review.
Judicial review is at the application of the person aggrieved; it is not triggered by a judge or a court. In order to obtain judicial review, leave has to be obtained. In other words, the applicant has to establish that he or she has a properly arguable case. If the case goes to judicial review, there are three basic reasons upon which the court will find that government action has been wrong if the evidence justifies it.
The first reason is illegality, meaning that the body or process in question was outside the law. The second is irrationality, meaning that within the framework of 87 the law, no reasonable person could ever have come to such a decision—it is beyond reason. The third reason is that there has been serious injustice in the process of inquiry or adjudication. So we have illegality, irrationality or fundamental injustice. Are we to deny a litigant the opportunity of showing, if he or she can, that he or she was subject to one or more of those aspects of wrongful government action? If we were to do so, we would divorce ourselves from the common-law countries which we founded—Australia, Canada, South Africa, India, the United States—all of which permit and promote a well controlled system of judicial review.
I entirely agree with the remarks of the noble and learned Lord, Lord Mackay of Clashfern. To stop such a right in respect of a person who, when it is denied him, may face grievous harm—even death in the country to which he returns, would be a blot on our system of justice. I am sure that in the light of what my noble and learned friend the Lord Chancellor said this evening, the Government will not wish to be associated with such a state of affairs.
As this debate has progressed, clarity has been introduced into the analysis. Such legislation is ready to be amended, as I understand my noble and learned friend the Lord Chancellor. He called it a state of affairs by amendment that led to necessary judicial oversight. For me, that is a synonym for appropriate judicial review. He said that there would have to be new arrangements with the administrative court. I read that to mean access to the High Court. And if there is access to the High Court, then there should be access to the Court of Appeal, strongly controlled as it is by that court only giving leave to a case which has good prospects of success, and then to the House of Lords—three or four cases a year, if that. Is this a system about which we should have concern or fear? Is it one we associate in our mind's eye with scroungers, thieves, ne'er-do-wells? I think not. It graces our system of justice. It introduces humanity. It represents what my noble friend Lady Scotland is reported to have said yesterday in a newspaper article—that which is just and proportionate.
So when Clause 14 returns for our detailed consideration, I am sure that what we will have most in mind is not, at the one extreme, shallow populist rhetoric or, at the other, libertarian fears of some legal Armageddon, but, rather, a coolly analysed, clearly reached conclusion that there must be access to the courts, especially for the poor, the ill educated, the foreigner, the alien, whose rights are no less than ours to have access to our courts.
§ 7.15 p.m.
§ Lord Lester of Herne Hill
My Lords, it is always a pleasure to follow my learned friend, the noble Lord, Lord Brennan. I am only sorry that the noble and learned Lord the Lord Chancellor is not able to be here for most of this debate.
This is a mean-spirited and reactionary Bill. It contains some provisions that lack common humanity and others that fail to tackle the real problems 88 resulting from the Government's failed asylum policy. However, like others, I shall concentrate on Clause 14—a provision which has stained the reputation of the Government and of the democratically elected Chamber.
The clause's death may have been announced by the noble and learned Lord the Lord Chancellor this afternoon, but it will long be remembered. It is difficult to understand how a Government who fashioned the Human Rights Act and who claim to respect the rule of law could ever have promoted a clause which is, in Churchill's famous words, "in the utmost degree odious".
Clause 14 has been universally condemned. It is the combined handiwork of the Home Office and Department for Constitutional Affairs. It has had the powerful backing of a Prime Minister who once practised at the English Bar—a Prime Minister who, I am very sorry to say, most regrettably, responds to the pressure exerted by the gutter press with knee-jerk reactions in a vain attempt to appease the right-wing tabloid newspapers' insatiable appetite for ever harsher measures against asylum seekers, the Roma and would-be immigrants.
Until today, Clause 14 received strong backing not only from the Prime Minister and his populist Home Secretary but also from the Secretary of State for Constitutional Affairs who also practised with distinction at the commercial Bar. When the senior judiciary explained their objections about Clause 14, the Government's response was not to abandon the ouster clause but to widen it so as to prevent the courts maintaining the rule of law. I find it profoundly dispiriting that this clause was approved by the other place. Such a clause was not contemplated during the Second World War when this country faced Nazi invasion. It was not contemplated in the recent legislation to combat the barbarous scourge of terrorism. It is frankly outrageous that such a clause should ever have been introduced to curb judicial review by asylum seekers seeking refuge from persecution.
On 24 February, the Commons committee published its report on the Bill. It expressed its deep concern about Clause 14. On 14 February, the Joint Committee on Human Rights, of which I am a member, published its report. We wrote:Ousting the review jurisdiction of the High Court over the executive is a direct challenge to a central element of the rule of law, which includes a principle that people should have access to the ordinary courts to test the legality of decisions of inferior tribunals".We said that the clause,seeks to make the immigration and asylum process operate outside normal principles of administrative law and legal accountability. This sets a dangerous precedent: governments may be encouraged to take a similar approach to other areas of public administration".These unanimous criticisms from all-party committees of both Houses did not persuade the Government to withdraw the ouster clause. On the contrary, they used their dominant majority in the Commons to abuse their unbridled legislative powers. 89 When I asked the noble and learned Lord, Lord Falconer, during the debate on 12 February, on the Government's proposed constitutional reform proposals, whether he was aware that the Joint Committee had unanimously concluded that Clause 14 is incompatible with the convention, his reply was that he was aware of that report, but that the Home Secretary had signed a compatibility statement indicating,on the basis of proper and legitimate advice that the Home Secretary has come to the view that this is a perfectly legitimate thing to do in the context of the Human Rights Act".—[Official Report, 12/2/04; col. 1317.]I am saddened that the Minister was persuaded to make a similar compatibility statement when the Bill came to this House. I wonder who could have given that "proper and legitimate advice". Not, I feel confident, the noble and learned Lord the Attorney-General, nor any human rights counsel worthy of the name.
The Joint Committee did not share the Home Secretary's view that Clause 14 is fully compatible with the convention rights, and this use of a Human Rights Act compatibility statement as a shield against criticism illustrates the danger of treating the convention rights as the only constitutional rights protected by our system of law and government.
The Human Rights Act was meant, in the words of Abraham Lincoln in his Gettysburg address, to enable our nation to have,a new birth of freedom".It cannot do so if it is interpreted by Ministers with the austerity of tabulated legalism. My noble friend Lord Russell was perfectly right to condemn the Government for being guilty of legal positivism, which is the hallmark of authoritarian government.
Only two weeks ago, the noble and learned Lord's junior Minister David Lammy MP—another barrister—told the House of Commons that the ouster clause was central to the Government's objective,to deliver a streamlined appeal system".—[Official Report, Commons, 1/3/04; co1.695.]Yet the Secretary of State now tells us that the Government have decided to abandon Clause 14. Of course, we are glad that the Government have announced their prospective surrender, but they would have faced inevitable defeat in this House. And if they had somehow forced the clause through, there would have been a constitutional crisis, a clash between the principle of parliamentary sovereignty and the sovereignty of the Queen's courts.
If the courts could not have circumvented the all too plain and ugly words of Clause 14, they would have been called on to decide whether the powers of Parliament are unlimited. Could Parliament lawfully abolish the courts altogether, or indefinitely postpone elections, or in some other way attack the fundamental principles of democracy? According to the Home Secretary and Mr Lammy—and presumably the Lord Chancellor—there are apparently no limits to the lawmaking powers of Parliament.
90 Our Joint Committee drew attention to the Commonwealth cases, where the Supreme Courts of India and of Bangladesh decided, under their written constitutions, that the legislature cannot destroy the essential features and basic structure of the constitution.
The maintenance of the rule of law is, as the noble and learned Lord, Lord Bridge of Harwich, once observed,in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law".Parliamentary sovereignty exists only because the courts interpret the constitution and the common law as conferring wide law-making powers on the legislature. But if Clause 14 had been enacted, our courts would have had to decide whether that provision could be refused judicial recognition as an unconstitutional abuse of legislative power,
As the noble Earl, Lord Russell, knows, four centuries ago in Dr Bonham's case, Lord Coke said:When as Act of Parliament is against right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge that Act to be void".Because of the Government's prospective 11th-hour surrender, the question of the modern application of Dr Bonham's case will not arise. But this unhappy chapter in the life of this Government will not be closed. It will be remembered by future generations as a warning against the arrogance of power, and of the need to protect minorities against the tyranny of an elected majority. It will leave an unsightly stain on the reputation of this Government, for adopting a measure for which they will always bear heavy and collective responsibility—each and every one of them. And it will serve as a warning against any further attempt by this Government—or some future government—to subvert the effective judicial protection of the rule of law.
§ 7.26 p.m.
§ Lord Hylton
My Lords, I agree with the noble Lord, Lord Brennan, that the Home Office does indeed have a difficult task to achieve, but there seem to be people within it who think that real problems can be solved by legislation. What is really needed in dealing with refugees and other would-be immigrants is thousands of small improvements in daily practice, where officials have to deal with their fellow human beings. I shall expand that point later.
This very questionable Bill has one redeeming feature; namely, Clause 4. It creates an offence punishable by up to 14 years' imprisonment of trafficking people to exploit their work or to sell their organs. The clause will enable this country to ratify the anti-trafficking convention, and I welcome it warmly.
I understand that a report from UNICEF to be published this week will show that there are some 3,000 street children in Sierra Leone extremely vulnerable to trafficking. The same may well be true of Liberia, Ivory Coast and Guinea, where there are war orphans 91 and many displaced young people. The Solicitor-General is reported to have visited Freetown. I trust that she will be able to convince her colleagues to take urgent preventive steps. Will it be made widely known in west Africa and elsewhere that trafficking for all purposes is an offence in Britain? Will our ports be put on the look-out for unaccompanied children and others who are travelling with people who are not their parents? When such children are identified as at risk, will the Government ensure that the care arrangements provide effective protection for the children?
In Sierra Leone, organisations such as Caritas have a good record in rehabilitating brutalised child soldiers. therefore ask whether our aid programmes will use that expertise to resettle the relatively small numbers of street children in west Africa and elsewhere at risk of being trafficked.
Victims of trafficking who co-operate in prosecution should be rewarded with residence and work permits if they want them. Victims should always be given both time and advice, before they decide what to do next. Will the Government draft amendments to cover these points?
As to the rest of the Bill, I notice that the Immigration Advisory Service says bluntly:There is simply no need for further legislation. These asylum driven reforms will have a massive and unwelcome impact on immigration cases, family visit visas, students and work permits".This is all too likely, since the Bill had no preceding White Paper, no consultation and no pre-legislative scrutiny.
I am glad that I now have the support of the Home Affairs Committee and the Constitutional Affairs Committee of another place and of at least nine out of 10 of the numerous briefs on the Bill concerning the importance of correct first decisions in asylum cases. It is not difficult to see why many first decisions are wrong and, indeed, perverse. The applicants must start by completing a 19-page form, responding in English only. The replies on the form are then checked against Home Office information on countries of origin. That information, I am sorry to say, is quite often incomplete or out of date. It sometimes conflicts with Foreign Office or US State Department assessments. Then comes the crucial first interview, and often the applicant has had no legal advice or adviser present.
The applicant has to face the "culture of disbelief" all too prevalent among Home Office caseworkers and minor officials. Country information may be overlooked, and all sorts of assumptions may be used to invalidate the applicant's story. Caseworkers regularly ignore the prevalence of bribery in poor countries. They pretend to know how police and prison officers work in foreign countries. They ignore or discount the use of torture and casual brutality, including rape, by both official and non-official parties. Both torture and casual brutality in fact are frequently causes of general fears of persecution in individuals. Those who wish for more details on these kind of lapses should study the report on refusal letters 92 and interviewing techniques for asylum applicants from one country, the Cameroon, which was published last month.
The result of this poor practice is that 20 per cent or more of first decisions are being overturned. The rate for Somalia, Zimbabwe and Turkey has been up to 35 per cent. That is why greatly improved training and supervision is needed for caseworkers and supervisors. Given their stated wish to reduce the number of appeals, will the Government provide resources for training staff, for ensuring that their usually good guidelines are in fact followed, and for early legal advice and top-quality interpreters? These are the minute particulars so urgently needed, rather than the endless legislation with which we are faced.
In Canada, where I once worked, there is a refugee protection division. Would that we had something similar here. Our duty of protection under the convention might be better discharged if we had an independent asylum decisions board. That should be supplemented by an independent centre for documentation and information on countries of origin. I hardly expect that the present Home Secretary, or indeed the rightwing tabloid press which has been mentioned, will take such suggestions very seriously. Some future government, perhaps, may find them useful. Meanwhile, I plead for steady improvements in asylum practice and for close teamwork on all the issues thrown up by trafficking. I am certain that this Bill needs major changes and wholesale improvement.
§ 7.23 p.m.
§ Baroness Kennedy of The Shaws
My Lords, I start by apologising to those on the Front Bench. I was slightly late in arriving for the debate because I was delayed in court. I apologise and I meant no discourtesy. Happily, however, I was able to hear the end of the speech of the noble Baroness, Lady Anelay, and the speech of the noble Lord, Lord McNally. However, I apologise to the Lord Chancellor.
I have great misgivings about the Bill. I urge upon those who are non-lawyers that this is not just a matter for lawyers; it goes to the heart of our legal system. I think that the noble Lord, Lord Clinton-Davis, put it so powerfully when he said that, coming from this Government, the idea of an ouster clause removing judicial review should never have seen the light of day. I want to reiterate that it is shameful that we even considered it and that it was pushed through the other place.
It is very difficult to explain to people why the removal of judicial review is so serious. For lawyers, it is built into our souls; for ordinary people, however, it seems so obscure and out of touch with their reality. Many people feel that the abuse of legal processes, which can be costly and time consuming, should be challenged. They do not like the idea of appeals being strung out on spurious grounds. They want to see that dealt with. We would all, on the surface, agree with that.
93 As many in this House have said, however, the ouster clause is an affront to the rule of law. The term "the rule of law" is used as a mantra by politicians the world over, but people are not really sure what it means. It means more than passing laws through Parliament. It means more than that because there is no discipline in simply abiding by laws which you yourself have passed. There have to be norms against which those laws must be tested. We now have those human rights norms, which are the template against which the rule of law should be tested.
The ouster clause is an affront to the rule of law because it takes away from us as citizens, and from those whom we should be protecting, the right to say, "There may have been an abuse of process here". We should keep telling people that we in Britain should be particularly proud of the rule of law. It was developed here in this country so many centuries ago, to prevent abuse by the monarch and those who governed us and to put checks on power. It meant no one is above the law. Today, that means all those who govern us and all those who make decisions that affect our lives.
We have exported that principle around the world, not just to common law jurisdictions but to everywhere. Every nascent democracy is being encouraged to embrace the rule of law. It has to be a full-blooded rule of law. What comes through in this legislation, however, is the fragility of the Home Office's hold on that concept.
When people ask me what judicial review is about, I try to explain that it is not a new invention but comes from our long common law history. For centuries, prerogative writs such as habeas corpus could be used to protect the liberty and freedom of the people. Over the past 30 years, however, it developed and got the new name of judicial review because—and this is a great credit to the labour movement—poor people were able to get good lawyers to defend their rights and to develop a body of case law around abuses of power. In recent times, we have also seen governments acquiring ever more powers to interfere with people's rights.
Judicial review has become crucial within our justice system. I say to my colleagues on this side of the House that it is being used to particularly good effect by those whom we have always said we were concerned to protect. Judicial review has been used to protect the right to protest, to quash police orders which prevented demonstrations in important areas of the freedom of speech. It has been used to supervise the meaning of criminal laws. In fact, I remember it being used to challenge the validity of by-laws at Greenham Common. It is used to review mental health detentions. It was used to quash the government attempt to ban trade unions in GCHQ. At a higher level, that situation was turned round. However, the challenge and the public debate on it were very important.
Judicial review has been used by trade unions to prevent a Conservative government amending criminal injuries compensation schemes to the detriment of emergency workers. It has been used to 94 protect the rights of women as part-time workers. It has been used to deal with death in custody and to develop systems. It has been used in relation to prisoners' rights, welfare and homelessness. So an erosion of judicial review goes to the heart of our commitment to human rights in protecting the most vulnerable. Yet, at the very same time, one cannot help but think that the ouster clause is being introduced in relation to some of the most vulnerable people in our society—asylum seekers— about whom public feeling might not be outraged because of the way in which xenophobic feelings are being enflamed.
We are faced with another example of something about which we should be very alarmed; namely, that legal principle is pushed to one side in the interests of short-term, attractive propositions. That abandonment of legal principle for short-term gain has long-tenn costs. It is a slippery slope, because where does it go next? The fact that we seem to have little grasp of what the rule of law means and of what principles are fundamental to our system is a matter that should concern us all.
Repeatedly, the Home Office tries to rectify problems that occur at first base, either in policing or in the immigration services, by interfering with justice processes. That is never the remedy for failure at the first decision-making point.
We see incredible schizophrenia on the issue of asylum. The Government have done many positive things in relation to racism, yet the rhetoric about false claims and abuse of the system feeds the very thing that we despise. The Home Secretary appears to believe that if you talk up a storm of toughness on issues, you can slip some decent change through under cover of darkness. He is wrong. That does not work. It only stimulates fear and intolerance among the general public. Even to talk of taking children away from their families, although we are told that it would be in the most extreme of circumstances and very rare, sent tremors of shock through the families of those who are awaiting decisions. The terror that that presents to people who have lived in abusive systems is quite disgraceful.
I fear that the Government are allowing the agenda to be set elsewhere. Right-wing tabloid newspapers are beasts whose hunger can never be sated. When the rhetoric that we have been hearing is insufficiently challenged by government, we see a shrinking of the space in which good things can be done, a shrinking of the space in which sensible debate can take place. I therefore urge Ministers to spend some time at charities such as Medical Aid for the Victims of Torture or the Refugee Council. They should spend time with people who are fleeing countries where they have been abused. That would remind them why the discourse of human rights should be filling our debate. Good politicians make the political weather. They do not respond to populist demands. I am afraid that the Bill is an example of the government responding to populist demands. We should revisit it, because many of its proposals are a source of shame to us.
§ 7.43 p.m.
§ Lord Phillips of Sudbury
My Lords, I shall address my remarks to a particular aspect of the Bill and our debate; namely, legal aid and access to legal services for immigrants, whether they are asylum seekers or straightforward immigrants. In doing so, I should declare an interest because my firm has been active in that kind of work almost since I founded it in 1970 and we hold a legal aid franchise—at least we do at the moment, as, sadly, we are about to withdraw from it because of the proposed changes in the legal aid system to which I shall refer shortly.
I at least acknowledge the enormous difficulty of the subject that the Bill addresses. While, on the whole, I feel sorry that my political career started so late and is going to be so short, and wonder how I would have responded to the weight of office, I am quite glad not to be handling this Bill. It is an extraordinarily difficult collection of issues for any politician in any party, and particularly at this time, to have to confront. Strongly though I feel about some of the inadequacies of the Bill, I absolutely make no charge of racism or other unworthy sentiments on the part of the Home Secretary or his Ministers. What they are seeking to do with which I disagree comes from a lack of understanding of how the proposals work out on the ground, particularly in legal terms. However, I accept that the pressure on the staff of the Immigration Service is enormous. Many young and inexperienced people are trying to deal with matters of life or death for those concerned—life or death in terms of poverty; life or death in terms of abuse if they are forced back to whence they came. By the same token, I hope that the Government will accept—I know that the Minister will do so because she has experience of these matters—that it is a very difficult task for the lawyers. It is one of the most difficult areas of work in the whole calendar of legal services.
I made a note of the opening remarks of the noble and learned Lord, Lord Falconer, about legal aid. He said:Reform of the appeals process goes hand in hand with reform of the legal aid system … We want to ensure that those who need advice because they have claims with merit will get it … We will target legal aid better".The first bit of targeting will take place on Wednesday this week when the Community Legal Services (Scope) Regulations 2004 come before this House. I shall start, in case I forget at the end, by asking the Minister whether the Government will consider postponing consideration of those regulations because they go directly to the heart of the practicalities of the Bill. The Explanatory Memorandum states:At present, funding is available for a representative (usually an agent or outdoor clerk)—I wonder where they get that idea from—working for a publicly funded organisation—that may be a solicitor's firm like mine—legally representing an asylum seeker, to attend the substantive interview with the Home Office".For those who reasonably do not understand what happens, at the start of the process an interview takes place with an immigration officer. That is the only 96 occasion on which the claimant will be in direct contact with, and directly answerable to, anyone from the Home Office. On the basis of the paperwork emanating from that first, substantive interview, the decision will then be made by the senior immigration officer on whether to allow or refuse the claim. Any subsequent appeal, whether under the present aegis—the Immigration Appeal Tribunal—or under the proposed aegis—the asylum and immigration tribunal—will be wholly dependent on that first interview. The memorandum continues:However, the Government believe that in the majority of cases, this is unnecessary, of no benefit to the client and a waste of public funds. It is therefore proposed that in all but exceptional cases, (unaccompanied minors; applicants going through fast-track initial decision processes; those suffering from a recognised and verifiable mental incapacity…funding for attendance by a representative at the substantive asylum interview will not be authorised".There is to be some exceptional power, but that will be confined to that narrow band of cases.
I turn now to another statement, made by somebody who has spent many years dealing with asylum cases. I thought it would be helpful to the House and to the Government if I were to read out what he says about that first substantive interview. He states:The effective exclusion of reps will have a significant impact on the fairness of and efficiency of the procedure. For asylum cases in particular, the Home Office is the most important stage in the pre-decision process. The information provided by applicants at their interview forms the basis upon which the Home Office decision is made".He goes on to state that representation is particularly important because applicants,are not given an opportunity to read or have their statements read back to them at the end of the interview. It is also recognised as good practice for representatives to bring independent interpreters to observe the interview, as it is not uncommon for the Home Office to supply interpreters who speak a different dialect or even a different language to the applicant. Although the Home Office do not formally permit representatives to intervene during the course of the interview, in practice representatives often intervene to iron out the not infrequent misunderstandings between the applicant and the interviewing officer or to remind a nervous applicant of an overlooked point".I do not need to expand on the fact that a lot of claimants are traumatised, or, if not traumatised, extraordinarily unsettled. They do not know the country to which they have come, do not speak the language fluently or at all, are often in need and cut off from their relatives and friends. They are in a high category of legal need.
That is one change proposed under the legal aid regulations. Another is to confine the amount of legal service that can be rendered to a claimant to three hours in respect of an immigration case and five hours in respect of an asylum case. That may sound a lot of time to those who are not lawyers, but in that time the legal representative will have to get to the interview, as one often has to do; try to coax from a worried, frightened and often inarticulate person, who is usually not fluent in the language, his or her story and case; find witness statements to back it up; get evidence, which he or she may not have kept with him or her for all sorts of reasons; get reports from doctors if it is a case of torture; get reports from other 97 countries; and get details from the country to which he or she is to be returned as to the true state of things there. In future, all that is to be dealt with within five hours, unless one can prove exceptionality and go to the Legal Services Commission, which, believe me, is an extremely cautious preserver of public funds. I have to say, too, with no disrespect to the many conscientious people who work there, that they are sometimes vastly inexperienced, with no idea what it is like to do a proper legal job.
The point that I am making is that the Bill cannot sensibly be passed by this House unless we have much better legal aid provision than is currently contemplated. If the regulations are passed on Wednesday, I shall in effect seek to strike them down by introducing clauses into the Bill to do something about that.
One may compare the procedure for immigration and asylum processes with that for any domestic criminal case. We all know that the PACE rules entitle anyone to be represented by a solicitor when he or she is interviewed by the police and when a first statement is taken. Crucially, that will be denied under these new rules. But that is only the first step: afterwards there is a court case, in which the person concerned has the right to go before a bench of magistrates or a Crown court and give evidence and make his or her case. That right will not be available in the cases that we are discussing; the interview is the last chance that a claimant will have to put his or her case personally. If one contemplates that process, and all that can ensue from a decision that can be perverse or simply wrongheaded, I believe that most of the points made against the Bill have been well founded.
Finally, I hope that the House will have regard to the provisions of Clause 7, which relate to claimants' credibility. In my view, that clause provides a presumption of incredibility as regards anything said by or on behalf of any claimant. I shall return to that matter when there is more time, but I commend it to your Lordships' attention.
§ 7.54 p.m.
§ The Earl of Sandwich
My Lords, whenever there are terrorist outrages or new anti-terrorism measures are proposed, asylum seekers tremble at the prejudice that enters society and threatens their very survival. In approaching this Bill, which contains very specific new measures to control and even to criminalise asylum seekers, legislators and adjudicators must remember that those affected are already living in a climate of hostility and considerable ignorance. The noble Lord, Lord Parekh, has already referred to the constant tightening of the screw. Those who are persecuted, or claim to be so, demand at least the same standards from our judiciary as the rest of our population, who, under the new anti-terrorism terminology, now seek security from others almost as a form of privilege.
That said, there are one or two very important elements in the Bill. I particularly welcome the new trafficking offence in Clause 4. As a council member of Anti-Slavery International, I am very pleased that the 98 Government have at last come forward with this legislation to curb traffickers. Admittedly, the Home Office was pushed to some extent by the EU Council framework decision of 2002, but, even so, there is genuine dialogue and even partnership with the specialised NGOs on this subject. It is no longer enough to rely on the amended Sexual Offences Act 2003, which deals mainly with trafficking of prostitutes and is very limited in effect. According to the vice unit, only five people received two-year sentences or more during the three years from 1999 to 2002.
However, as my noble friend Lord Hylton said, what about protection? Why has that been left out? It is no good concentrating on the crime if one is not also paying proper attention to the victims. Countries such as Italy are far ahead of us. In the United States, victims are even given residence and work permits in return for co-operation. What are the Government planning in that regard? There should be better balance in legislation and a new clause introduced. For example, are there plans for more Home Office support for those excellent non-governmental organisations providing safe houses, at the very least?
On the larger question of migration, I am sorry that the Government's plans for managed migration form no part of this Bill; indeed, they seem to have stalled. I understand how difficult it is to proclaim a positive agenda against the current media background. I hope that there will be some opportunities at Committee stage.
The passport offence in Clause 2 is a retrograde step, as has been argued, because, by definition, many persecuted claimants in a first interview either do not have access to documents or have come in with false papers. Some are simply in the power of traffickers. The Government are simply ignoring Article 31 of the 1951 convention.
Many people feel strongly about the matter of failed asylum seekers in Clause 8, so I shall not say much. There is a question of local authority funding when social services are already under pressure. It is a moral issue that no one in this community should be left destitute. Under Section 55 of the 2002 Act, 200 more destitute people have arrived every week in London. Two out of three asylum seekers are still in-country applicants, so the Government's deterrent strategy is plainly not working. There is also the matter of the reduction in the access to legal aid, as has been mentioned, which is bound to increase destitution. The Medical Foundation has brought up some good examples, which we shall refer to at Committee stage.
Clause 14 and the matter of appeals is the major concern today. We are all relieved by the removal of what amounted to a dangerous precedent, although it is very unclear whether the concession means the wholesale deletion of the clause, as it should—not least, because so many eminent judges and lawyers have spoken against it. The noble and learned Lord, Lord Steyn, has made the ultimate comment that the Bill attempts "to immunise manifest illegality". Several have referred to the poor quality of decisions, 99 which I believe is a matter of unanimity in the debate. ILPA's list of 38 recent Court of Appeal judgments is itself evidence of the necessity for a proper appeals procedure. The Conservative amendment in another place does not go far enough, but at least it calls for the revival of statutory review, which has hardly been given a chance to work. It is no wonder that people say that policy is made on the hoof.
Like others, I picked up a much more fundamental concern about the continuing culture of disbelief in the Home Office—and, indeed, in the tribunal itself. That atmosphere will not go away with the replacement of the tribunal. Some adjudicators feel that the public climate turning against asylum seekers is actually affecting judgments. One adjudicator, to whom I have spoken personally, said:Many adjudicators and members of the Tribunal bring an even-handed and judicial approach to their work. Unfortunately there are many others who see themselves as the 'last bastion' against the 'hordes waiting at the gate'.Despite this, I can continue my work because I know that a final appeal lies from the worst excesses of the Tribunal. If Clause 11 is allowed to go through, there will be no such appeal".That may be one person's view, but it is a serious indictment. That adjudicator, who has also lived in some of the countries of origin of asylum seekers, goes on to claim that the IAA,is not up to the task of being the final tribunal in the process of asylum".In other words, it is not just the principle of the ouster clause that is wrong, it is the intrinsic quality of the decision-making in the system which has caused concern to many people and is the very reason for which an independent judicial review and appeal procedure exists.
That is not just a worry of a few adjudicators. In Arshad v Secretary of State in 2001, Lord Justices Laws and Waller both refer to the lack of evenhandedness and consistency on the part of the IAT. Lord Justice Schiemann cited that in Oleed v Secretary of State 2002. Those references do not amount to an open criticism of bias but at least they suggest an unease inside the judiciary about the validity of some of the judgments. The noble Lord, Lord Avebury, has referred to the quality of the adjudicators themselves. Whether the continuing culture of disbelief is driven by new government policies of deterrence can be debated, but given the general direction of those policies, it seems fairly obvious to me that it is.
Clauses 18 and 19 concern removal and detention. I hope that the Minister will take this opportunity to update us on improvements in the detention estate. For example, what progress has been made with accommodation centres and the new smaller model proposed by the Refugee Council? As a patron of the Haslar Visitors Group, I remain seriously concerned about conditions in so-called removal centres.
The word "removal" is still a misnomer. The average length of stay at Haslar is still five months and some stay more than a year. The improved accommodation proposed is welcome, but it does not reduce the waiting time or guarantee quality. 100 Education standards at Haslar are high and must be preserved. Incidentally, the rise in the number of successful escapes—there were 11 last year at Haslar—suggests that detainees are getting more desperate as the Government place more pressure on asylum seekers.
Improving initial decisions means better information. I hope that the Government will consider the proposal for an independent documentation centre. White lists have not helped; they can even hinder. The most up-to-date information is essential. Even in safe third countries, there are always threats from non-state agents. I give the example of the Kurdish people, who may easily be returned from Germany, although Germany is classified as a safe country.
So consultation on the Bill has not been nearly as good as it was last time. Nevertheless, on some issues, it is fair to say that we have a listening Government. They have backed down over Zimbabwean nationals under UN pressure. The trafficking clause has already been mentioned. There is a possible rethink of accommodation centres. So it is reasonable to expect that they will listen today and in Committee and amend the Bill. I also appreciate that governments have to be seen to be active, although they cannot always convince themselves that their actions are legitimate.
§ 8.4 p.m.
§ Baroness Gibson of Market Rasen
My Lords, undoubtedly, there have been major problems with initial decision-making on asylum and immigration issues over the years. Undoubtedly, it is the Government's job to ensure that any asylum and immigration system operates fairly, competently and robustly. Undoubtedly—it should go without saying—there must be no knee-jerk reactions to those who voice popular prejudice. Any policies in the field must be well thought out and capable of meaningful implementation.
Yes, the Bill has its flaws, which many of your Lordships have emphasised today. But that is nothing new. All legislation is flawed when we first receive it in this House. Indeed, it is our key and important job to improve it, and we will. Perhaps it should not be, but it is.
The Government have told us that they are in a listening mood and this Second Reading gives us the chance both to raise the issues about which we are worried and to point out where it strengthens current legislation and fills gaps in it. It is always easier to criticise than to praise. Therefore, before I turn to the Bill proper, I shall pay a brief tribute to those at the sharp end of our legislation—those whose job it is to assist it bona fide a sylumseekers and immigrants by sifting the genuine from the mass of overall applicants. That is not an easy job.
Recently, with other parliamentary colleagues, I visited the fast-track reception centre at Oakington and saw its procedures in action. Together with my noble friend Lord Dubs, I sat in on an interview with 101 a young man who was claiming asylum. He also claimed to be under 18, and so should not be dealt with under the same procedures as the adults in the centre. It was difficult to assess his age, but it was not too difficult to understand that his story had large holes and inconsistencies in it from beginning to end. The young woman lawyer who was assisting him with his case was patient and kind. She gave him every opportunity to expand on and further explain his story. The translator was also conscientious and attentive.
The atmosphere at Oakington was not one of oppression or fear. The workers in Oakington and other centres and the agencies involved in the field of asylum and immigration are carrying out difficult work on our behalf. We should not forget them in our deliberations. Nor should we heap all the blame for weaknesses in the system on them. If there are weaknesses in the system, it must be more the fault of the politicians than those who work in our asylum and immigration services. It is too easy to criticise those who work in establishments. Yes, I think that we must accept some responsibility ourselves.
Whether we like it or not—I do not—many of our fellow citizens believe that there are still too many immigrants arriving and staying in the United Kingdom. Emotive words, such as "flooding", are still bandied about freely and most irresponsibly. There is still a great deal of muddle about legislation relating to asylum seekers and immigrants, economic or otherwise. I believe that some of that muddle may be deliberate.
Certainly, some of the muddle has been fuelled by lurid press headlines and less than accurate media reporting. Irresponsible and sensational headlines designed to sell newspapers rather than impart accurate information obviously have an effect on readers. Of course, the worry is the disturbing impact that such reporting can have on the lives of those who are currently members of our community.
I have the pleasure of knowing a prominent person and his family who came to this country 30 years ago. Since then, they have worked within and on behalf of their local community. Recently, they have experienced the impact of negative feelings about asylum seekers and immigrants. The family has felt a backlash against and prejudice towards them from people they have known for many years. A hostility has entered their everyday lives. Obviously, it is unnerving for them and, both in race relations and economic terms, it is bound to be detrimental to the community as a whole. That example and others serve only to reinforce the necessity for accurate reporting, coupled with a clear understanding of what we wish to achieve through our legislation.
Clause 4 was mentioned by two noble Lords, but it has not been highlighted by the media. However, it has been warmly welcomed by a number of organisations, including the Refugee Children's Consortium, which includes many prestigious organisations. This is new legislation to cover a growing problem throughout the world; that is, the trafficking of people for 102 exploitation. I want to emphasise the plight of young girls and women used by traffickers for their own financial gain. The stories of the girls' plight are horrendous. They are enticed to the UK by false promises and end up in prostitution and slavery.
I first became more knowledgeable about the practice when I visited a number of organisations, including the National Criminal Intelligence Service, while taking part in investigations by EU Sub-Committee F on which I served, which looks at issues surrounding immigration, among other matters. I learned how the trafficking of women and girls in Europe has greatly increased over recent years. I heard that all the organisations involved in fighting that evil recognise that they are only scratching the surface in their efforts to catch the traffickers.
The story of one young Romanian woman illustrates the plight of the girls. She was a bright student in her late teens. In Romania, she met a young Romanian man who had recently returned from England. He told her about the opportunities in the UK and offered to help her enter the country—illegally, as it turned out. She came, and within a week she found herself in a seedy house with other young women, some of whom were very young indeed. She was imprisoned and a succession of men visited her day and night. If she did not provide the services required, she was severely beaten. She was one of many, many young women without hope and without help.
The Bill tackles that evil. Clause 4 covers the trafficking of people for exploitation, who are referred to as "passengers". It also covers those who assist traffickers to carry out their horrific crimes and those who arrange the departure of the passengers from the UK when the trafficking ring is discovered and, therefore, there is a need to transfer the passengers to another country to carry on their vile trade.
The Bill also covers illegal activities surrounding organ transplantation. It outlaws any inducement or pressure on individuals, many of whom are impoverished, to sell their organs to those people rich and unscrupulous enough to buy them. The Bill is designed to protect the most vulnerable; that is, people with little to sell except parts of their body and those who are desperately in need of protection from brutal and manipulative people who feed off the plight of unfortunates.
I support the questions raised by the noble Lord, Lord Hylton. I welcome Clause 4 and look forward to its implementation. I only wish that the media had chosen to highlight it or had given it even a little positive coverage. This clause brings hope and help to extremely vulnerable people. Surely, that is worthy of plaudits.
§ 8.13 p.m.
§ The Lord Bishop of Worcester
My Lords, I am happy to associate myself with the noble Baroness in welcoming the provisions against the trafficking of children particularly, though noting that the Refugee Children's Consortium draws attention to other 103 features of the Bill which are less child-friendly and which will need to be addressed as the Bill goes through this House.
However, I have a more fundamental—and perhaps less useful—contribution to make to this debate. Every few months I meet the person in my diocese whose job it is to provide counselling services for clergy under stress. She provides me with the raw statistics of the number of referrals: sometimes they go up and sometimes they go down. Every time, we have a conversation about which would be good news. This came to mind as the widespread welcome was given to the decline in the number of asylum seekers coming to this country. Is it good news? I am not so sure.
If it means that the world is a safer place—that there is less suppression and violence, that fewer people live in fear of their lives—that is a very good reason for being glad that the number of asylum seekers is going down. If, however, what it means is that this country, in common with many other countries, is constantly ratcheting up the fear involved in the process of migration and acceptance, and that people in oppressed countries are reflecting on whether their fear of that is greater than their fear of what they are enduring, then that is not such good news. I am far from sure that it is the former.
Just before the last general election, three groups of 10 Church leaders went to visit the three leaders of our main political parties in order to talk about the subject of race and how it might affect the coming election campaign. I was in the group that visited the Prime Minister, and remember saying then that I wondered whether the Government should do more to enlist public support by providing real education about the character of the asylum phenomenon and migration in the contemporary world. He and the then Home Secretary seemed to think that this would be a good idea, but I do not think anything along those lines has yet happened. What concerns me is that, whereas the noble and learned Lord, Lord Falconer of Thoroton, said that we need finality in the asylum process at an early stage, I long for some finality in the production of asylum laws. This Bill provokes in me the reflection, "When will this end?".
I welcome of course the provisions against trafficking. However, when my grandmother spent the Second World War in hiding in occupied France—and, when her husband died, had to bury him illegally in the garden—she had to pay an awful lot of money to the people who were hiding her, because there were people making money out of that. If we suppose this was entirely unjustified in the circumstances of the Third Reich, we need to remember that the rhetoric being used in this country at that time was not altogether friendly, and governments had to find resources of courage to be welcoming.
When I read the clause about the withdrawal of support, I remember the story I grew up with as a child—that of my mother arriving in this country and being told to go to the bank with one of those large, white £5 notes (the only money she had), to have it changed into £1 notes. The bank clerk made the 104 insensitive error of tearing up the white £5 note before he had given her the pound notes in exchange. It is a story that has always stuck in my memory and imagination.
The account of the noble Lord, Lord Hylton, of what the process is actually like—together with the comments of the noble Lord, Lord Phillips of Sudbury, and the noble Earl, Lord Sandwich—is something into which we need to enter with imagination as we contemplate a Bill of this kind. What concerns me is that this Bill is one in a series of constant mis-statements of the problem. Of course there is a problem about trafficking, and about illegal and uncontrolled migration. These problems exist, but they pale into insignificance against some other problems to which I wonder who is giving attention.
Who is giving attention to finding how many people are sitting trembling in refugee camps in distant places, or enduring unbelievable oppression because of what they have heard about the processes which they will have to go through if they are to attempt to flee and come to a different country? Is not that a problem? How many people have been returned as a result of the draconian procedures we already have in place? Do we know and do we mind? Is that a problem about which we need to concern ourselves, and about which the public need to be educated?
The Refugee Children's Consortium rightly says that refugee children—the children of asylum-seekers—are, before anything else, children. The Disability Action Group rightly says on the subject that asylum seekers with disabilities are first and foremost people with disabilities. I do not accept, most fundamentally and perhaps least usefully for the deliberations of the House, that the Bill correctly states the problem. The problem is a world in which, for some people, migration seems the only option.
Of course, on the periphery of that ministry assembles itself a dark penumbra of criminality and sheer profiteering—but it is not the problem. It is the symptom. Those symptoms that the Bill addresses are only symptoms, and the problem remains not only unaddressed, but substantially undiscussed in the society of which we are a part. I regard that with the utmost seriousness.
Too many people have needed to speak already about Clause 14. I will say only that I am glad that it can be done away with, but I hope that it will never be forgotten. I feel quite sick that it was ever suggested.
I have wanted to say that I confront the Bill not only with some personal experience of growing up in households that talked about what migration was like. I speak also as someone who was briefly chair of the asylum committee of the Refugee Council, and as someone who has close friends working with scant resources in the west Midlands in the area of integrating, helping and supporting asylum seekers and refugees. That kind of experience leads me to say of the Bill that it simply mis-states the problem.
§ 8.22 p.m.
§ Lord Corbett of Castle Vale
My Lords, the whole House will be grateful to the right reverend Prelate for coming at the Bill—dare I say it?—not as a lawyer, but with experience from another angle. I do not believe that the Bill belongs to lawyers; it has another dimension. I suggest to noble Lords that the Bill needs to be seen against the background of widespread and sustained public perception that the present system for handling asylum claims is failing. I did not state that as a fact; I said that it was a public perception.
In one recent poll, 36 per cent of respondents named asylum as their main concern. That is almost unbelievable. Every other poll tells us that the main concern is the National Health Service, education or transport. I want to say to your Lordships, particularly those who are lawyers, that those are the realities that Members of Parliament face day by day and week by week as they go back to their constituencies and meet members of the public. It is a challenge for us as well. The Government and Members of both Houses of Parliament have a duty to respond to such concerns. Unless we do, the mood of cynicism, falling voter turnout and all the rest of it will follow and accelerate.
It is not enough to condemn those who fish for votes in these waters as racists and bigots, although many are. It is not enough to condemn the bias and deliberate misreporting, day by day, of such issues by the Daily Mail, the Daily Express and others, although we should do so. We need better to understand what tempts and pushes voters into the clutches of the British National Party, not least when we prepare to mark the 60th anniversary of the Normandy landings, which presaged the destruction of the fascism that bodies such as the BNP embrace.
Too many people outside of these walls feel unheard and unrepresented on this and associated matters. There needs to be an open debate around these matters, so that we can try to reconnect with the public and their concerns. Those of us here have a responsibility, as those in the media do—as well as the faith groups, the trade unions and the voluntary organisations—to encourage and enable an honest, informed and mature debate, and I hope that this can begin to happen around this Bill.
I share with many noble Lords admiration for the work of the Immigration Advisory Service, the Immigration Law Practitioners Association and other sundry groups working in this area. In turn, they need to acknowledge public perceptions about asylum claimants and help to meet and explain them.
Clause 14, which, as we know, would have removed all supervision by the higher courts of all immigration appeals and not just asylum, has rightly attracted considerable opposition. In terms of public perception, many people do not understand how appeals can go endlessly on and on with the taxpayer seemingly footing the bill. It is the perceptions that matter. So the Government, like their predecessor in November 1992, are right to try to find a way of shortening the appeal process consistent with it 106 remaining fair. I welcome the Government's willingness to listen to objectors, but if the legal brains and experience in this House cannot find a way, no one will. It should be possible to meet public concerns over often considerable delays, and give a proper role to the courts.
Much has been made of proposals in Clause 8 of the Bill to remove benefits from asylum claimants who have exhausted all appeal stages and declined the offer of an assisted return home—where this can be safely achieved—usually with the help of the International Organisation for Migration or the UNHCR.
Again, in terms of public perception, many people do not understand why people are not automatically removed when asylum claims fail. This is not straightforward, and I do not think that there is enough explanation. Some countries refuse to accept returning nationals. We rightly insist that it is safe to return failed claimants. There are difficulties in confirming a claimant's nationality and getting it confirmed by the country against which it is claimed, and so on.
If we are to win better support and understanding for the way in which we carry out our responsibilities, as we should under the 1951 UN convention, there must be a better system to return failed claimants. I ask my noble friend Lady Scotland to confirm my understanding that voluntary returns will be offered only to countries, or parts of them, where it is safe and that unless this can be achieved, no returns will be made and benefit will continue until alternatives have been found.
I do not want for a minute to sound harsh or uncaring, but those whose claims have been refused also have responsibilities, not least where children are concerned. It would be wrong to allow people in this position to seek to use children as a shield against safe return. It would also send a misleading signal to the people traffickers: if you stay around long enough in the United Kingdom, despite your claim failing, you can stay anyway. Building and sustaining a fair and efficient asylum system depends on a number of factors, not least the quality of the initial decision. The Government are aware of that and, as the UNHCR says, they deserve to be commended for their,willingness to engage in arrangements to review first instance procedures".The UNHCR adds:This willingness deserves to be commended because independent scrutiny is an important first step towards achieving sufficiently high standards in this area".I hope that in the same spirit we can work together to improve the present system, both for the benefit of asylum claimants themselves and to better acknowledge and respond to public concern in this area.
§ 8.30 p.m.
§ The Earl of Listowel
My Lords, I welcome the intentions of the Bill, as put forward by the noble and learned Lord the Lord Chancellor, to increase public 107 confidence in immigration and the process involved, and to promote the successful integration of immigrants into communities.
Like several other noble Lords, I welcome the introduction of Clause 4, which will punish people who traffic. I understand that, in organised crime in Europe, the trafficking of humans has superseded drugs trafficking in terms of financial remuneration and importance. This is therefore a timely initiation into legislation.
The principles that should govern the immigration procedures include the need for an effective initial decision on the applicant's case and an expeditious and fair process. If applicants are found not to have a valid claim, it is important that they be returned to their home country, if public confidence in the system is to be maintained. The noble Lord, Lord Corbett, has just referred to that.
We must also be cautious in our approach and remember that the predominant reason that immigrants come to this country is conflict in their home countries, as evidence adduced to the Commons Select Committee showed. Immigration flows follow conflict in countries; they do not depend so much on the level of poverty or development in a country. We should bear in mind that conflict is the predominant feature.
We need to act sensitively. I remember well speaking to a young woman from Sierra Leone who described to me how her sister had been toyed with by men in uniforms with guns. The men threatened to cut off the woman's hand or arm; in the end, they decided to kill her. The young woman to whom I spoke was still very, very upset by what had happened.
I used to play Scrabble with a young man, who I knew for a while. He was an excellent Scrabble player because he had been kidnapped in Sierra Leone and kept in the jungle for several months, where he and the other captives, who were doctors and so on, passed the time by playing Scrabble. He was an intelligent young man but had been clearly damaged by the experience. He fell back very much on the Koran, always listening to it on tape and finding succour through that means. Many such people have had traumatic experiences and must be dealt with extremely sensitively.
I welcome the principle of returning to their home countries applicants whose claims have been found to be false, where it is safe to do so. In principle, therefore, I welcome Clause 8, but I am very concerned about how it would work in practice and the consequences. I look forward to reading the correspondence from Beverley Hughes to the noble Baroness, Lady Anelay, to gain reassurance in the area. However, I am very concerned that real consideration is not given to how the provision will work in practice. Several noble Lords referred to the lack of consultation on the Bill. The withdrawal by the noble and learned Lord the Lord Chancellor of the central piece of the Bill during today's proceedings indicates that not enough thought has been given to these proposals. We need to look very carefully at the implications of Clause 8 and the 108 provision to remove NASS support to families in certain circumstances, and at what consequences that might have for the care system.
The Government have acted admirably as regards the care system in introducing much greater funding to this long-neglected area. The latest programme is entitled -Choice Protects". It is entitled "Choice Protects" because each child has a different need and should be in the right placement, whether it is the right foster carer or the right residential children's home. The problem is that we are short of 6,000 foster carers, just in England. We have high ideals about what we want to do, but we are stuck with the work force—there are not enough people to take in these children. What implications does this measure have for that? We need to think very carefully about that.
Noble Lords have referred to Section 55 of the previous immigration Act. We received much literature about how that has been implemented. While that Bill was proceeding through the House, many assurances were given that people would not be made destitute and that there would be sensitive application of the law. But it appears that many people have been made destitute and we need to reflect on what has happened there as we think on this clause.
I remember another young man whom I knew for several years and with whom I studied for a short time. He came to this country from Eritrea at the age of 10 and lived with his sister and cousins here. He was a very bright young man—a member of MENSA. He went to University College, got a degree in engineering, led the college football team—a very gifted young man. Sadly, at the age of 20, when I saw him again, he was drinking and taking drugs, and really going to the dogs. My perception was that this was because he had been without his parents for so long. I would be very concerned if this clause led to children being separated from their families and their parents.
We need information on the numbers of families that the Bill is likely to affect. We need to know that the Government will have exhausted all the other possible means of removing these people. The Commons committee emphasised that more needed to be done by the Government to encourage voluntary returns and it put forward a number of proposals to encourage that. I hope that we may discuss those proposals and see what the Government's response has been. I look forward to working with the Government on this legislation. As was recognised, there was a single lack of consultation leading up to the Bill, so I hope that proceedings in your Lordships' House may allow for greater thought to be given to these very important measures.
§ 8.38 p.m.
§ Lord Plant of Highfield
My Lords, like my noble friend Lady Gibson, I think there are some good things in the Bill. I want to concentrate on the things I found troubling in the same way as other noble Lords have done. I should say that I am a member of the Joint Committee on Human Rights and I endorse the report made by that committee on the Bill in February.
109 Before coming into the House this afternoon, I was planning to concentrate on the issue of appeal in Clause 14. However, following the speeches of my noble and learned friend the Lord Chancellor and the noble and learned Lord the Lord Chief Justice, and the elucidation of the role of administrative courts made in the remarkable speech by the noble and learned Lord, Lord Mackay of Clashfern—with which I very much agreed—I am now much more settled over the issue of appeal. That is on the assumption, which I took from the speech of the noble and learned Lord, Lord Mackay—that the administrative court as a high court will be independent of the tribunal. Therefore, on that basis, I think I am reasonably happy.
There are some issues that I want to take up. I will return to the issue of the role of the administrative court. In paragraphs 67 and 68 of the Joint Committee's report, published in February, we drew attention to the fact that it was perfectly possible to imagine that the Immigration Appeal Tribunal might, in specific cases, act in a way that was incompatible with convention rights. Even if we accept the Government's view that the number of such cases will be low, it seems to me that numbers are not of the essence in the context of rights.
If rights have been infringed, there ought to be some kind of remedy, either under Article 13 of the European Convention on Human Rights or under Section 7(1) of the Human Rights Act 1998, and a determination that a public authority—in this case, the tribunal—has infringed convention rights. That process should be carried out by a body independent of the public authority—the tribunal—that has infringed the right. On the assumption that we are talking about an independent review, it seems that that qualm expressed by the Joint Committee is laid to rest.
That leads me to a second issue. Although it may be argued there are few immigration and asylum cases that would be concerned with civil rights, as understood in Article 6.1 of the ECHR, Articles 2, 3 and 8 impose a positive obligation on the state to take reasonable steps to protect rights against infringement. Mistakes are possible, given the conditions in which the Immigration Appeal Tribunal works, and that, again, is a good case for having access to a higher court.
I am not a lawyer, but to my mind the issue goes slightly broader than just the review by the court. I fully accept that the Bill will be amended by my noble and learned friend the Lord Chancellor, but Clause 14(7) says that the appeal tribunal may entertain,proceedings to determine whether the Tribunal has acted in a way which is incompatible with a person's rights under Article 5 of the Human Rights Convention (liberty and security)".In a sense, that is a restrictive understanding of the sort of rights under the convention that can be appealed. Given that the whole idea of the Government's approach to the tribunal was to create a sort of self-contained system, does that mean that, if there is to be an appeal to the administrative courts—essentially, a form of judicial and independent review—those courts will be able to entertain the range of ECHR rights, or does it mean that the courts will be able to entertain 110 only the two rights specified in the Bill? That was something that exercised the Joint Committee. On page 27 of our report, we said:It seems to us that this"—the restriction to liberty and security—would leave many cases in which there could be a serious threat to fundamental human rights yet [this] clause would exclude the jurisdiction of the courts. For example, habeas corpus protects only the right to liberty of the person. There would be no access to courts to protect other Convention rights from being violated by immigration and asylum decisions. Some of these rights are of even greater importance than the right to liberty of the person, including the rights to life and to freedom from torture and inhuman or degrading treatment or punishment, to say nothing of the right to a fair trial and the right to respect for family life".So what I am interested in is whether the proposed changes to the appeal system will allow the administrative court to entertain claims on that broader range of rights, as the Joint Committee suggested it should. It is an important issue and I am unclear about what the consequences of the announcement made by my noble and learned friend at the start of the debate would actually mean in that respect.
To conclude, I want to say a few words about what seems to be the general constitutional position in relation to the Bill, a matter which has been discussed quite widely and critically in the debate. I want to dwell for a moment on the claim made by the noble and learned Lord, Lord Mackay of Clashfern, about constitutional values which, it might be claimed, Parliament would have overridden in passing this legislation. I very much agree with what he said because at the root of that claim is, I think, the role of the common law. The claim is twofold. First, the sovereignty of Parliament itself is a product of the common law; and, secondly, the common law, as both customary and judge made, has over the years embodied principles of constitutionality which, over the past generation or so, have been made much more explicit by judges exercising judicial review. Hence both parliamentary sovereignty and constitutional constraints are equally products of the common law and therefore Parliament should accept that its own sovereignty is in some sense constrained by the principles of constitutionality enshrined in the common law from which it derives its own authority and sovereignty.
I am pleased that, in respect of the ouster clause, the Government themselves have decided to operate within conventional understandings of the constitutional position. In my view, one of the great successes of this Government, although there is a long way to go, has been in the field of constitutional change. It would have been a tragedy if this Bill had ridden roughshod over basic constitutional principles derived from both the parliamentary and the legal aspects of the common law.
§ 8.47 p.m.
§ Lord Thomas of Gresford
My Lords, I am immensely flattered that the noble and learned Lord the Lord Chancellor has chosen my speech to be the first that he will hear in full. I am sure that he will take 111 every opportunity tomorrow to read the speeches of all other noble Lords, in particular that of my noble friend Lord Dholakia. He made the very important point that immigration has been a "success story" in this country.
Not only has immigration been a success, but so has integration. The noble Lord, Lord Parekh, pointed out that we have had economic migrants coming to this country for centuries, some of them with swords and axes the Anglo—Saxons, as I recall. In addition we have had waves of people fleeing political and religious persecution. We have all integrated and benefited from that. I note that among the noble Lords who have spoken, nine have a Celtic background, nine have an Anglo-Saxon background, and the rest hail from a kaleidoscope of backgrounds which has added a great deal to this debate. I am alarmed when I read about fears of a plague of Roma people coming to this country because my Gypsy ancestors came here in the 16th and 17th centuries. They quickly integrated by adopting the harp as a way of earning a living. They would take harps around north Wales to play in pubs and clubs. Indeed, at night my friends have to restrain me from twanging the odd string in the Bishops' Bar.
We have all integrated and it has been a success. We are facing a problem only over a limited period of our history. All are agreed in this very informed debate that what is required is, as the noble Baroness, Lady Anelay, said, a "humane but efficient system". The noble and learned Lord, Lord Woolf, referred to a "fair and efficient system", which would sort out asylum seekers from economic migrants. May I just say this for emphasis: there is no reason necessarily to reject these economic migrants as failures. We ought to reflect that they may well have much to contribute to this country, even though they do not pass the asylum seeker test. They are risk-takers whose energy and drive to surmount obstacles to reach their goals is paramount. Such people have created successful and democratic societies in the United States, Australasia and elsewhere in the world.
The noble Earl, Lord Sandwich, was right to remind us that unfortunately the reform of immigration rules and policy has, for the moment, stalled. Coming to the subject matter of the Bill, surely this debate illustrates that the quality of the decision is crucial. As the right reverend Prelate the Bishop of Oxford said, finality is less important than the correct and just decision.
The noble Lord, Lord Brennan, pointed out to us the various stages of processing that an applicant for asylum has to go through. Under pressures of time, because there are very strict time limits placed upon applications, the applicant must first of all understand the procedures that he has to operate, and that may require interpretation. He then has to marshal his case, and my noble friend Lord Phillips of Sudbury reminded us that medical reports may be required to prove that the applicant has been subject to torture. He may have to prove, for example, that he is a member of a particular tribe in Somalia, because the Home Office will accept that if one is a member of one tribe 112 in Somalia, that is the end of the issue—there is no further question. Very often that is an issue at that stage.
The applicant may have to show what the activities of a particular government are—for example, the current position of the government of Zimbabwe towards people of a particular political persuasion. He may have to deal with the loss of his documents and provide explanations for all that. Then he has to present his case to an unsympathetic interviewer. His legal aid, which your Lordships might think should be increased by a humane system, is now to be reduced, as the noble Lord, Lord Phillips, pointed out.
So that is the first step. Then there is the decision itself, and that is where the greatest delay arises: the initial decision is in the name of the Home Secretary, but it is in fact taken by a caseworker on the basis of the papers that are placed before him or her. My information is that such caseworkers are paid something in the region of £15,000 a year, which indicates to your Lordships the experience that such people have in taking these particular decisions. Some of them, I am told, are graduates who cannot get another job, and produce very good decisions. Others are less fortunate. Some are immigrants themselves, who, having come into the country in this particular way, are thought to be good to help in these decisions.
So an appeals process is clearly necessary. This is the third stage of the noble Lord, Lord Brennan: the appeal to the adjudicator. The scandal—because it is a scandal—is that the Home Office is represented in only about 60 per cent of those cases, and, with the limitations now being placed on legal aid, there is now a considerable chance that the applicant will be unrepresented as well. I am told that adjudicators have been instructed, if they are presented with an applicant in person and nobody from the Home Office, to do the best they can. In such circumstances, as is the tradition of this country's legal profession, the judicial figure will do his best to ensure that the applicant's case is properly put.
But that takes time, and points that may be made by the Home Office against an applicant are not made because there is no one there. I was amazed to be told that 40 per cent of appeals from the adjudicator to the tribunals are by the Home Office. Those appeals are brought because, very often, points adverse to the applicant have not been made and therefore the applicant has been successful. No doubt I shall be told if that statistic is wrong, but if it is right that is a disgrace.
There is a danger that if the principal indicator of the quality of a decision is the rate of success of asylum appeals, that will lead to cuts in legal aid, a single tier of appeal and an extension of the safe country concept. All those matters, plus the other problems to which the Bill gives rise, will make it more difficult to overturn the bad initial decision, and so the success rate of appeals will fall.
The logic the Home Office will then apply is, "If the success rate of appeals falls, that shows that the initial decision was a good-quality decision, so why do we not 113 abolish legal aid altogether and then all appeals will fail?". That is the sort of danger that exists under the whole panoply of the reforms—I use the word with question marks around it—proposed by the Government.
I have criticised the initial decision making and the problems that arise on appeal but, at the other end of the process, only 15 per cent of failed asylum seekers are returned. That is not the fault of the lawyers. Many people say, "We are not lawyers; we are not inflicted with that particular plague", but it is the Government's failure to organise a fair and just system for dealing with people who do not pass the asylum test that, again, is a matter of deep concern.
How does the Bill improve the position? The noble Baroness, Lady Kennedy, has given the history of the supervisory jurisdiction of the High Court. Under the prerogative writs, under the judicial review system, the court does not purport to take away from the decision-maker the right to decide in a particular case. But, traditionally, on judicial review the court ensures that the procedures have been just and fair; that the higher courts—whether the Divisional Court, the Court of Appeal or the House of Lords—set standards and that the standards they set affect the whole system all the way down to the initial decision. It is quality control; it is acting as a regulator. If they were called "Ofjudges", that would go down very well with this Government, who have "Of" this and that in almost every field.
But the Bill as drafted makes the tribunal the judge of the fairness of its own procedures. I know that someone in the pub in Gresford will say to me, "Does Parliament have no regard to the principle nemo iudex in sua causa—no one should be a judge in his own cause—because for 2,000 years it has been accepted that a tribunal is blind, or may be blind, to its own errors?". Therefore the proposals initially set out in the Bill conflict with the principles of the English common law which, where it is old enough, go back to the very start of the legal systems that we know about.
In addition, there is in the Bill an attempt to coerce people to do things. It will be an offence to enter this country without a passport, although the true asylum seekers are the least likely to have passports and papers in the first place. It will be allowed for support to be withdrawn from people in an attempt to encourage them to get out of the country and make them indigent. We are saying, "We don't want you". We are threatening to take people's children away from them to coerce them to do things.
I entirely agree that it is a difficult problem. But the Bill, I suggest, has been formulated in a climate of prejudice and bigotry. We look to the Government for leadership—for resources of courage, as the right reverend Prelate the Bishop of Worcester said. The noble Lord, Lord Corbett, said that the public perception is that the system is failing. Notice that he did not say that the system is failing, only that the public perception is that it is failing. The public perception depends upon leadership. If the public 114 think it is failing it is because the Government lack leadership. Let us have an open debate on these issues, and let us use the Bill as an opportunity to do so.
§ 9.1 p.m.
§ Lord Kingsland
My Lords, I cannot think of a worse area of the law to make the basis of an ouster clause than immigration law. We, mercifully, abolished the death penalty many decades ago; but the consequences of making bad asylum decisions are often to send people to their death. I am therefore greatly relieved that the Government have decided, on mature reflection, to think again about the ouster clause and Clause 14.
The Government's attempt to persist with the clause until now has had, I think, one lasting benefit to the country, which has been reflected in a number of speeches made this afternoon. If I mention only those of the noble Lord, Lord Clinton-Davis, from the Labour Benches, the noble and learned Lord, Lord Woolf, from the Cross Benches, my noble and learned friend Lord Mackay of Clashfern from the Opposition and the noble Lord, Lord Lester of Herne Hill, from the Liberal Democrat Party, I hope that other Peers will not feel that they do not deserve an association with what I am about to say.
Tonight we have had an important constitutional debate which was, if I may respectfully say so, very effectively summarised by the noble Lord, Lord Plant. He reminded us that the doctrine of parliamentary sovereignty is not an assertion by politicians—it is a doctrine of our courts. It is our courts that say that Parliament is sovereign. And in saying so, it is also our courts that determine what the limits of parliamentary sovereignty are. I would like to think that, when the noble and learned Lord the Lord Chancellor began to reflect on Clause 14, this factor played a part in his subsequent decision.
I suppose that in a free society there are two cornerstones: one is democracy and the other is the rule of law. The essential component of democracy is access to the ballot box for everyone. The essential component of the rule of law is access to the courts for everyone. Underpinning both these concepts is a society's deep belief in equality. Everyone has access to the ballot box; everyone should have access to the courts. The noble and learned Lord the Lord Chancellor has listened in the past few weeks to many things the judges and others have been saying about Clause 14. I should like to think that he reflected on the constitutional limits of parliamentary sovereignty; and if he did, I congratulate him.
Whatever motivated the Government's decision, it has illustrated to the country—and to all political parties—what the limits of parliamentary sovereignty should be. The debate this afternoon has brought that out in an extremely effective way, and I believe it will have deep, long-lasting and beneficial implications for the quality of legislation in the future.
I want to look ahead now to the Committee stage and make some suggestions to the Government—they may think rather impertinently—about the direction in which they ought to travel.
115 I have always believed that the ouster clause—quite apart from being constitutionally improper—is also unnecessary: if the Government can devise a statutory scheme which is fair, then the courts will exercise their discretion not to grant judicial review; and, therefore, the Government will not be faced with a series of re-applications to the courts on what is essentially the same issue.
There are three components to a fair statutory scheme. The first one is that, on matters of law—on alleged errors of law—there ought to be an appeal from the tribunal to the Court of Appeal and, if necessary, to the House of Lords. This is particularly important in asylum matters because the law is so complicated. We not only have a large number of primary legislative measures, but we also have detailed rules—the immigration rules, and immigration and asylum rules on appeals. Behind this, we have two very important public international conventions, the refugee convention and the human rights convention. This is a complex web of legal measures which will, inevitably, test the appeals tribunal, on occasions, beyond its capacity. It is, therefore, vital that the role of the Court of Appeal and the House of Lords is reinstated whatever else the Government propose to do with Clause 14.
I do not believe that this will be an additional cause of delaying the system. The statistics indicate that, last year, there were between 50 and 60 appeals to the Court of Appeal, and very few beyond that to the House of Lords. It must be right that that situation—which is in the existing legislation—is preserved in the Bill.
Secondly, as a number of noble Lords said—I recall particularly the speech of the noble and learned Lord, Lord Donaldson of Lymington—it is vital to reinstate in the Bill the supervisory powers of the administrative court to deal with applications for leave to appeal from the decisions of the adjudicator.
The noble and learned Lord, Lord Donaldson of Lymington, was perfectly right. He mentioned a statistic that over the past seven to eight months about 550 applications were considered. He also said that a rather high proportion of those were allowed, a little over 20 per cent. That is a reflection, I suspect, of the quality of decision making at adjudicator level. The lesson that ought to be drawn from this is that the main focus for the Government in devising a new scheme for Clause 14 ought to be at the adjudicator/appeal tribunal level.
What the Government want to do here—and there is evidence for this because it is on the face of the existing Bill—is to concertina the existing adjudicators with the existing appeal tribunal. In principle, we on the Opposition Benches are not against that; but we are against a solution which does not improve the quality of existing decision making. If we are going to have a one-stop shop rather than a two-stop shop, then it is vital that the institution that emerges does better than the combined effect of the two institutions that we have at the moment.
116 It is premature to make detailed comments about what we think that ought to be. I think it better to wait for the Government to come up with their proposals. However, it would not be satisfactory to the Opposition simply to keep the adjudicators and abandon the tribunals. Something new has to be produced which meets the weaknesses of the existing adjudicator system. As a number of your Lordships have said, in my view quite rightly, what we want is a system that is both just and at the same time effective.
The other area that I hope the Government will look at—again, this has been mentioned by many of your Lordships—is the various earlier stages in the procedure between the asylum application and its consideration by the Home Office, and the period between the consideration of the Home Office decisions and the consideration by the adjudicator. Those are areas of great delay. I am convinced that, with better administrative procedures, the delays could be substantially reduced.
So the ouster clause is gone. The Government are going to think again. We must now all look forward to the Committee stage of the Bill.
§ 9.11 p.m.
§ Baroness Scotland of Asthal
My Lords, I think it was the noble Lord, Lord Thomas of Gresford, quoting the right reverend Prelate, who said that leadership needs courage. I think that your Lordships have had no lack of that this evening.
I very much welcome the tone of this debate. I think that the noble Lord, Lord McNally, said that perhaps we all need to apply a deal of humility in looking at the history of how this issue has been dealt with over a period of time and a number of years. I was a little more doubtful about the title he gave me as "chief charmer" for the Government.
The noble and learned Lord the Lord Chief Justice says, and I think he said it well, that the system needs to be fair and just and not readily susceptible, I think he said, to abuse. We respectfully and wholeheartedly agree. The truth is that we all want a balanced, fair and just determination; in that, the Lord Chief Justice and the right reverend Prelate the Bishop of Oxford are absolutely correct. We have acknowledged that delay and abuse have to be removed. The old adage that justice delayed is justice denied holds particularly true in cases dealing with asylum seekers who are subject to the anxieties and trauma of having to resettle after a period of real disadvantage.
Much has been said about the quality of the initial decision-making process. That was a theme taken up by the noble Baroness, Lady Anelay, the right reverend Prelate the Bishop of Oxford, and the noble and learned Lord, Lord Donaldson, among others. We appreciate that fact. The Government have made strenuous and successful strides to reverse the figures so as to demonstrate an enhanced quality of assessment and determination.
The noble Lord, Lord Thomas of Gresford, raised the issue of presenting officers. We accept that the average level of representation for January to 117 December 2003 was 70 per cent. That figure covers both presenting officers and counsel. By the end of March 2004, an additional 65 presenting officers will be in post, representing the Home Office at adjudicator appeals. We very much hope that that enhancement will assist us.
I can also reassure the noble and learned Lord the Lord Chief Justice and give him the assurances he seeks that our current arrangements on discipline and removal of judicial officers will continue and will not be removed without his concurrence. We also appreciate the Lord Chief Justice's anxiety about the provision in relation to the practice direction. We very much hope that this issue can be settled in a way that is satisfactory to him.
The right reverend Prelate the Bishop of Oxford raised the issue of legal aid, as did the noble Lord, Lord Phillips of Sudbury, and others. I can assure the right reverend Prelate and noble Lords that five hours refers to the time provided to ascertain whether there is a valid case. If more time is merited, more time can be provided. I know that noble Lords will have a full opportunity to debate those matters with my noble and learned friend the Lord Chancellor when he comes to address them in due course.
The legal aid regulations and provisions are of course extremely important, but they do not go to the root of many of the issues that we have been discussing today. I assure my noble friend Lord Clinton-Davis that the Bar Council and the Law Society have not been backward in coming forward with their comments. They have written to my noble and learned friend the Lord Chancellor on that matter and their views will be taken fully into account.
§ Lord Clinton-Davis
My Lords, it is one thing to make written representations. Will my noble friend, on behalf of the Government, ensure that Ministers and officials have meetings with the Bar Council, the Law Society and with the immigration authorities?
§ Baroness Scotland of Asthal
My Lords, there is no resistance to that if it seems to be appropriate. I cannot speak from the Dispatch Box to my noble and learned friend the Lord Chancellor as he is no longer by my side, but I am sure that he would be delighted to do that. I see him nodding his assent.
It is important that we all have an opportunity to debate and discuss those matters. The noble and learned Lord, Lord Mackay of Clashfern, said clearly that it is not an easy issue to deal with. From the experience that he had in government, he must appreciate the enormity of the task with which we are all faced.
However, the adherence to the rule of law, and equality and parity of treatment before our courts, are principles that the Government are determined to maintain. We accept that we must address the delay and difficulty presented by those who wish to take advantage of what they see as loopholes in the process, but that will not be at the sacrifice of other issues of fairness.
118 I assure the noble Lord, Lord Dholakia, that the Government recognise the great advantages of diversity and we rejoice in it and are enriched by it. I heard the noble Lord's reference to a report of the comments in America of my right honourable friend the Home Secretary, but the theme of that speech was the huge benefit in diversity. It was said that problems had occurred between communities and that the challenge for us is to maximise the benefits and to minimise the difficulties. The Home Secretary said at Harvard that he was convinced that we can combine diversity with integration and therefore with stability, thereby maximising the benefits. I am sure that the noble Lord, Lord Dholakia, would agree with those sentiments.
The balance that we have sought to strike is between safeguarding those who seek and deserve to receive succour as a result of being seekers of asylum and penalising those who seek to delay and to obfuscate. I am sorry that the noble and learned Lord, Lord Donaldson, felt that in our efforts to provide a fair and just system, the Home Office may find itself castigated as a vexatious litigant. We have no such intent and our behaviour, which has been proportionate in the way in which we have addressed litigation, assisted as it is so ably by Treasury counsel and others, would not justify us being so categorised.
Noble Lords raised issues about what further changes we can make to the system, and rightly identified some of the difficulties that we face in relation to legal aid and the approach of a limited number of practitioners. The noble Lords, Lord Newton and Lord Avebury, questioned whether the change to a single tier was merited. The noble Lords, Lord Newton and Lord Avebury, asked whether as lawyers they could make an appropriate contribution. I certainly join my voice to that of my noble friend Lady Kennedy of The Shaws, in saying that all voices are welcome in this debate, and the lawyers by no means have the balance all in their favour.
In response to the noble Lord, Lord Newton, the proposed model for the tribunal has built into it a number of safeguards. It has starred determinations, which will be made by a panel in conjunction with the president and deputy president. That will provide authoritative case law that is binding on members of the tribunal. It will bring together the expertise of the two tiers and the judiciary and the tribunal will be mutually supportive. We shall consider all those issues together, and shall be able to hone them in a way that will, I hope, inure to the benefit of the system. I join with the comment made by my noble and learned friend the Lord Chancellor in saying that I am confident that we can find a solution that meets the needs of all.
The noble Lord, Lord Avebury, specifically raised issues about the numbers going down, so that we do not need a single tier. That was the thrust of one of the comments that he made. Even if the numbers in absolute terms fall, the percentage of people seeking to review decisions would be unlikely to alter. We have all 119 said that we do not want there to be a slow system that was unfair in which genuine asylum seekers were delayed.
§ Lord Avebury
My Lords, presumably, if the Government are claiming to improve first decisions, people will not feel so inclined to appeal and the percentage will go down.
§ Baroness Scotland of Asthal
My Lords, we have said that we agree with that. I by no means seek to undermine the comments that we have made in the past, that the improvement of the initial decision-making process is of real importance. We have made strenuous strides to improve that, and it is a matter of some mild satisfaction that the level of appeals has been affected as a result.
§ Lord Lester of Herne Hill
My Lords, I am sorry to have to ask my questions of the Minister and not of the Lord Chancellor, who has achieved his usual invisibility in donning the wig and sitting on the Woolsack. However, could she make two points clear to the House? First, are we to understand from what was said at the beginning of the debate, that when the Bill says that the tribunal's jurisdiction will be exclusive and final, those words will no longer represent the Government's position because there will be judicial review? Secondly, does the Minister accept the view expressed on all sides of the House that Parliament's sovereignty depends upon the common law and is not absolute and unlimited if it violates democracy or the rule of law?
§ Baroness Scotland of Asthal
My Lords, I can say an unequivocal "yes" to the first question. I hope that we have made it clear that the provisions that we are minded to introduce will replace the current Clause 14 with a new system. My noble and learned friend the Lord Chancellor has made it plain that he hopes that in crafting something between us we shall be able to involve the administrative court in a satisfactory way. I also bear in mind the comments made by the noble Lord, Lord Kingsland, and others, in relation to the number of cases that will be subject to judicial review if it is replaced by an alternative. One possibility being discussed by a number of noble Lords is statutory review—as the noble and learned Lord, Lord Mackay, said, among others. That is what we are considering now. At this stage, we cannot look at the precise details because we are in the process of formulating them. But it was important that that statement was made by my noble and learned friend at the beginning to set the scene for the direction in which we all hope to go.
I am sure that my noble and learned friend the Lord Chancellor will not only listen to everything that has been said in the debate but also read every word about the issues raised with great care. In particular, I noted the comments made by the noble Lord, Lord Lester, and my noble friends Lady Kennedy of The Shaws and Lord Plant. My noble friend Lady Kennedy said that good politicians make the weather. We do, and we are.
120 My noble and learned friend the Lord Chancellor set out the sort of weather that he intends to develop. As I said, the difficulties that we face have been set out in the debate. My noble and learned friend also set out the course which we—all of us—are now jointly embarked on. I hope that this opportunity will be grasped by all; that is, those noble Lords who may not have wanted any change whatever and those who are accused of wanting too much change.
My noble friend Lord Corbett said that we have a duty to respond to these concerns and to encourage informed debate. I respectfully agree. I understand the concern of the right reverend Prelate the Bishop of Worcester about discouraging genuine asylum seekers, but that is not the intent behind these procedures. If we manage to improve the procedures, we shall assist in reducing the anxiety that many asylum seekers experience as a result of the delay and help to ensure that they can settle and start to address many of the problems which they inevitably will face.
Despite some of the deeply held arguments put forward about Clause 14, we have found a lot of common ground on these complex issues. Most of us agree that public confidence is essential for the successful integration of refugees and for maintaining good community relations in towns and cities across the United Kingdom. The country's long tradition of welcoming genuine refugees and legal migrants should be encouraged to continue. We are fortunate to live in a diverse and tolerant society that, by and large, welcomes and embraces inward migration.
We have dwelt considerably on Clause 14. It is right that I seek to address other issues that have been properly raised by a number of noble Lords. The noble Lords, Lord Dholakia and Lord Avebury, and the noble Earl, Lord Russell, referred to Clause 2, which deals with the difficult and serious problem of individuals who are undocumented seeking leave to enter or remain in the United Kingdom. We know that many of those individuals have documents when they begin their journey. By the time they arrive in the United Kingdom, they claim not to have them, despite the fact that it is virtually impossible to get on many airlines without a passport or equivalent.
By introducing a criminal offence of being undocumented, we are sending a clear message that it is unacceptable for people to dispose of their papers in order to frustrate the consideration of their claim and, should the claim be refused, frustrate their removal. I can assure the House, as the Government have done on many previous occasions, that the clause is not designed to catch, for example, refugees who are fleeing their country without papers. Where people do not have a passport during their journey to the United Kingdom, that will be a reasonable excuse for not having it when they seek leave in the United Kingdom. Therefore, they will have a defence under Clause 2.
I also assure the House that we have taken full account of our obligations under Article 31 of the Refugee Convention. Following an amendment we put forward in the other place, we have provided an exception to the general provisions that it will never be 121 a reasonable excuse to dispose of one's passport just because one is instructed or advised to do so by an agent. The exception will cater for the rare situation where, for example, an individual is so vulnerable or dependent on the person giving the instructions that he or she cannot reasonably be expected to ignore them.
The noble Earl, Lord Russell, touched on the burden of proof. Where a person is shown to be undocumented, the onus is on the individual to show on the balance of probability that he or she has a good reason for being undocumented; for example, that they never had the document. Given the special nature of the offence and that it will be uniquely in the knowledge of the individual to explain how he or she came to be in the United Kingdom without a passport, we are satisfied that it is right for the onus to be on the person to show that. I am glad that the Joint Committee on Human Rights shared our view.
I was asked a specific question in relation to children. I think it was the right reverend Prelate the Bishop of Southwark who raised this issue and asked specifically what happens when a child does not have a passport. The defence of "reasonable excuse" would include situations where, for example: the child never had a passport; the child travelled with an adult who was in effect in control of the passport and took it away; the child was pressurised into releasing their passport in circumstances where he or she could not reasonably resist that pressure. It would be a very rare case indeed for the offence to apply in practice to an unaccompanied child. However, it would not be right to exclude them from the scope of the clause since there will be situations where the offence might properly apply —for example, a 17 year-old child who chooses to dispose of their passport with a specific aim of ensuring or enhancing their claim.
A number of noble Lords—my noble friend Lord Parekh, the noble Earls, Lord Russell and Lord Listowel, and the right reverend Prelate the Bishop of Southwark—all raised the issue of withdrawal of family support. Clause 8 has been subject to some misunderstanding. The policy is not designed to make families destitute; it is to encourage a family whose asylum claims and appeals have been rejected to take up the more dignified option of a paid, voluntary flight home with some reintegration assistance at the other end, instead of having to enforce their removal and sometimes detain them. The choice for these families is not between staying in the United Kingdom and going home; it is between returning voluntarily with some integration assistance, or having their removal enforced.
Withdrawal of support will not be an automatic process. We will put in place a robust procedure to make people aware of the consequences of failing to leave and what they need to do to avoid withdrawal of support. We continue to assess the best way to implement these propositions and have really listened to the points raised. That is why we amended the Bill to allow a right of appeal to the asylum support adjudicator and this will provide further confidence in 122 the overall process we envisage for Clause 8, and further reassurance that, where support is withdrawn, the decision is the correct one.
Compulsory removal is, of course, one of the options open to us. We will intensify our programme of these removals where possible, although it is clearly preferable for families to take up the more dignified option of voluntary return. Where a family does not have travel documentation, compulsory removal simply cannot take place. If a family do not have a document, we need to apply on their behalf to the relevant embassy to obtain one. Necessarily, this requires the family's co-operation as an embassy will not issue a travel document unless it is satisfied of the family's true identity and nationality. There remains, therefore, an incentive for some to fail to co-operate with the steps we have applied to take and, ultimately, this would thwart their removal altogether.
It is that incentive we must tackle, and of course we do face difficulties in returning failed asylum seekers to particular countries when there can be practical problems in obtaining travel documentation or secure routes back. It is important to keep in mind that these difficulties do not mean a country is unsafe simply because we are not in a position immediately to enforce removal. That should not mean that a family remains entitled to support at the taxpayer's expense indefinitely, when there are other options available.
I would also draw attention in particular to the voluntary assisted returns and reintegration programmes operated by the International Organisation for Migration. It is open to all failed asylum seekers to apply to the IOM to take part in this programme and we would expect families to take up this opportunity to make a dignified return home.
My noble friend Lord Corbett asked what would happen in relation to voluntary returns to unsafe countries. Each individual claim is considered on its merits. Therefore, we would only expect a person to return to a given country if we believed that it was safe for that individual.
No doubt we will return to many of those topics when we come back to the debate, but I hope that I have time to touch on the issues of trafficking for exploitation. My noble friend the Chief Whip is giving me the nod, so I shall speak as quickly as I can.
A number of questions were raised by the noble Lord, Lord Hylton, the noble Earl, Lord Sandwich, my noble friend Lady Gibson, and, again, the noble Lord, Lord Corbett, about the offence of trafficking for exploitation in Clause 4. I give warm thanks to those who commended the Government on that. The Government are committed to tackling effectively the crime of human trafficking, and that new offence is an important step in ensuring that sufficient legislative measures are in place. However, we of course recognise that that alone will not solve the problem of trafficking. The Government's efforts on the issue therefore go substantially wider, to tackle the range of problems presented by trafficking. Our work includes prevention, identification and support of victims, and prosecutions.
123 The noble Lord, Lord Hylton, raised a question about spreading the message internationally of the serious nature of trafficking as a crime. I assure him that there are a number of schemes in source countries and regions involving the Foreign and Commonwealth Office and the Department for International Development aimed at raising awareness of trafficking. One example of that is the support given by DfID to Anti-Slavery International's work with civil society in west Africa to raise awareness and stop the trafficking of children.
The noble Lord and others raised an important issue about identification of victims and the need for the Immigration Service to be aware of trafficking as an issue. I can again provide reassurance that the immigration officers are aware of trafficking as an issue. One example of that in practice is that officers throughout the United Kingdom have been made aware of the trafficking toolkit, a publication that aims to raise awareness of trafficking and help those concerned to treat its victims appropriately. It is of course important, once the victims have been identified, that appropriate support is given to them, and social services will have a key role to play in that provision.
An issue was raised about reflection periods and residence. We are satisfied that our current practices have due regard to the effect of removals on all persons who have breached immigration law, including those 124 who may be victims of trafficking. The Immigration Service will treat every application from a victim of trafficking on its individual merits, and will consider all relevant information. We therefore do not consider that separate and specific provision needs to be made.
The Bill contains a number of important measures to ensure that we are able to achieve all those aims. I commend it to the House.
§ Lord Phillips of Sudbury
My Lords, will the noble Baroness address a question that I raised in relation to the Community Legal Service (Scope) Regulations, which are before the House later this week? If passed, they will pre-empt the very debate that she was looking forward to with the noble and learned Lord the Lord Chancellor in relation to legal aid matters.
§ Baroness Scotland of Asthal
My Lords, the noble Lord will know that such matters usually have to be dealt with through the usual channels. Noble Lords will see that the debate is listed in the Forthcoming Business. I have had no indication that the Government are minded to remove it therefrom, but all will obviously have heard the comments that he and others have made. They will be able to make whatever decisions are deemed appropriate.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at twenty-one minutes before ten o'clock.