§ 3.10 p.m.
§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 14 [Unification of appeal system]:
§ [Amendments Nos. 45 and 46 not moved.]992
Lord Falconer of Thorotonmoved Amendment No. 46A:
Page 13, line 22, leave out subsections (6) and (7) and insert—
(6) Before section 104 of that Act (pending appeal) insert—
"103A REVIEW OF TRIBUNAL'S DECISION
(1) A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.
(2) The appropriate court may make an order under subsection (1)—
(3) An application under subsection (1) must be made—
(5) An application under subsection (I) shall be determined by reference only to written submissions of the applicant.
(6) A decision of the appropriate court on an application under subsection (1) shall be final.
(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to—
(8) This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more members.
(9) In this section "the appropriate court" means—
103B APPEAL FROM TRIBUNAL FOLLOWING RECONSIDERATION
(1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.
(2) In subsection (1) the reference to reconsideration is to reconsideration pursuant to—
(3) An appeal under subsection (1) may be brought only with the permission of—
(4) On an appeal under subsection (1) the appropriate appellate court may—
(5) In this section "the appropriate appellate court" means—
(6) An appeal under subsection (1) to the Court of Session shall be to the Inner House.
103C APPEAL FROM TRIBUNAL INSTEAD OF RECONSIDERATION
(1) On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court.
(2) On a reference under subsection (1) the appropriate appellate court may—
(3) In this section—
(4) A reference under subsection (1) to the Court of Session shall be to the Inner House.
103D COSTS ON RECONSIDERATION: LEGAL AID
(1) This section applies where the Tribunal has decided an appeal following reconsideration pursuant to an order made—
(2) The Tribunal may order that the appellant's costs—
(3) The Secretary of State may make regulations about the exercise of the power in subsection (2).
(4) Regulations under subsection (3) may, in particular, make provision —
(5) Regulations under subsection (3) may make provision—
(6) Before making regulations under subsection (3) the Secretary of State shall consult such persons as he thinks appropriate.
(7) This section has effect only in relation to an appeal decided in—
(8) In relation to an appeal decided in Northern Ireland this section shall have effect—
103E APPEAL FROM TRIBUNAL SITTING AS PANEL
(1) This section applies to a decision of the Tribunal on an appeal where its jurisdiction is exercised by three or more members.
(2) A party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.
(3) An appeal under subsection (2) may be brought only with the permission of—
(4) On an appeal under subsection (2) the appropriate appellate court may—
(5) In this section "the appropriate appellate court" means—
(6) A further appeal under subsection (2) to the Court of Session shall be to the Inner House.
(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to—
§ The noble and learned Lord said: In moving this amendment, I shall speak also to Amendments Nos. 47A, 50A and 52 to 59.
§ I am grateful to Members opposite for agreeing broadly to the procedure whereby I should move my amendments, which, in effect, put forward the structure in relation to the replacement of the existing judicial review ouster. Noble Lords have indicated that they do not intend to move their amendments so that there is a proper opportunity to consider my amendments, which is sensible.
§ Clause 14 is the central part of the Bill and it has provoked considerable interest and discussion. Clause 14 will create a unified appellate structure for asylum and immigration appeals but, as I said at Second Reading, we need to ensure that we have proper and appropriate judicial oversight of the system so that it is independent, thorough and fair. I agreed at Second Reading that we did not have that correct just yet, but I made it clear that any new system of judicial oversight must also ensure an increase in speed and a reduction in abuse.
§ For this reason I have brought forward these amendments to replace the judicial review ouster with a new system allowing oversight by the Administrative Court and Court of Appeal. Although I shall be referring to the Administrative Court and the Court of Appeal, I want to be clear that the arrangements for higher court oversight involve the higher and appellate courts in Scotland and Northern Ireland.
§ The amendments have been brought forward in consultation with the Lord Chief Justice. He is not here for this debate, but he has sent me a letter about the amendments, from which he has kindly said that I can quote in the debate. A copy of the letter has been placed in the Library.
§ It may be helpful if I set out how we intend the new system to work. Amendment No. 46A replaces subsections (6) and (7) in Clause 14 with the new system of judicial oversight of tribunal decisions set out in new Sections 103A to 103E that will be inserted into the Nationality, Immigration and Asylum Act 2002.
§ New Section 103A will allow a party to an appeal to the tribunal to apply to the High Court, for an order requiring the tribunal to reconsider its decision on appeal, on the grounds that the tribunal made an error of law. If the High Court judge thinks the tribunal made an error of law, the case will be sent back to the tribunal for reconsideration. We would expect cases to be sent back to the tribunal only if the judge thinks the error of law may have made a difference to the outcome of the case and we will ask the Civil Procedure Rules Committee to make this clear in the civil procedure rules.996
§ The application must be made by an appellant within five working days from receipt of the tribunal determination, unless the appellant is appealing from abroad and then the application must be made in 28 days. If the Home Office decides to make an application, it must always lodge an application within five working days. An application will be determined by reference only to written submissions from the applicant. The decision of the High Court will be final. A person will not be able to use this review procedure to review procedural, ancillary or preliminary decisions. The review process is there to allow review of the substantive appeal determination made by the tribunal. Neither will a person be able to make more than one application to the High Court for a review. Where a case is remitted back for reconsideration, any further oversight of the tribunal's decision would be by way of appeal to the Court of Appeal.
§ We expect this system to operate much more efficiently than at present so that appeals in future will take a maximum of around 15 weeks—at present. although many appeals are decided quickly, those that go through every stage of the process can take a year or longer. In future, we anticipate it will take eight weeks from when the appeal is lodged until the appeal is promulgated by the tribunal. This is shorter than the time it takes for most appeals to be determined at the adjudicator stage at present and will be the result of concurrent working in the Immigration and Nationality Directorate and the tribunal—and better case management in the tribunal so the eventual hearing is better focused on the key issues. These changes will allow cases to be listed and determined quicker than at present.
§ We expect most appeals to be concluded after eight weeks, but for the minority of appellants who wish to challenge the tribunal decision, it may take a further seven weeks to have the review carried out and, if necessary, any reconsideration of the case by the tribunal. I should also add that during the transitional period, when the filter is operating, which I will explain later, another two weeks will be added to the later stages.
§ New Section 103B provides that where an appeal to the tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the Court of Appeal. They will not be able to seek a further review by the High Court. If they wish to dispute the decision, the only recourse is to appeal to the Court of Appeal. An appeal may be brought only with the permission of the tribunal or, if the tribunal refuses permission, the Court of Appeal.
§ New Section 103C allows the High Court to refer a case straight to the Court of Appeal if the judge thinks the case raises a question of law of such importance that it should be decided by the Court of Appeal. This could be described as a "leapfrog" procedure, as in such cases they would leapfrog straight from the High Court to the Court of Appeal without a reconsideration in the tribunal.
§ New Section 103D provides an enabling power to make regulations for a new legal aid scheme for both the High Court review process and reconsideration of 997 cases by the tribunal. We wish to take such an order-making power because we intend to make specific legal aid provision for those applying to the High Court for a review. The amendment provides for the order to be introduced by negative resolution, but I understand that earlier today the Delegated Powers and Regulatory Reform Committee asked that we change this to affirmative resolution. I am willing to make this change and will bring forward an amendment at Report.
§ I am concerned that the new system has been overwhelmed by too many weak applications being made. For example, in 2003 there were 32,000 decisions taken on applications for permission to appeal to the Immigration Appeal Tribunal. Just 12,000 were allowed to pursue the case to a further level—not necessarily having the decision overturned. That means that 20,000 applications did not even have an arguable case and had no real prospect of success. We are therefore taking a new power in the Bill to introduce a new way of funding cases making a review application to the High Court and in any subsequent reconsideration proceedings. This will ensure that we arc targeting the most meritorious cases. Instead of the Legal Services Commission taking the funding decision, we will provide the judiciary with the power to order that legal aid is paid in these proceedings.
In his letter, the Lord Chief Justice said:
I am sure the Government will consult fully before the regulations are made, but in principle I welcome legal aid arrangements which allow meritorious cases to proceed but discourage applications without merit overwhelming the High Court".
§ I share the concern of the Lord Chief Justice, and I believe that the power we are taking in this Bill will enable us to achieve this aim. I should make it clear that we are not changing the initial funding arrangements for the appeal before the Asylum and Immigration Tribunal. The new arrangements, which we will bring forward in regulations, will affect the review application and any reconsideration proceedings that follow the review.
§ We are asking lawyers to share the risk with the taxpayer when deciding whether there is an arguable case against the tribunal determination and if it should be challenged. We believe that will lead to lawyers giving a more rigorous examination to the prospects of the case succeeding. Good lawyers will already be doing this, but we want to encourage this throughout the profession. It will enable us to focus ever more sharply on the deserving cases that merit legal aid funding. As your Lordships will understand, the legal aid budget is limited and we have to balance priorities carefully across jurisdictions.
§ The regulations will set out the detail of the scheme and these will be the subject of full consultation. The scheme will form part of the legal aid scheme and payments would come from the legal aid fund. We are not removing these cases from the scope of legal aid, but are proposing a new approach to evaluating the merits of seeking review and reconsideration proceedings. One could say that we are asking the legal representative to share the risk of bringing a case. 998 However, to help mitigate the risk they are taking, we will pay a success fee to those cases that are successful on reconsideration of the case.
§ I would call the scheme "no win, no fee", but subject to exceptions. We envisage that a judge in the tribunal would order legal aid to be paid in circumstances where cases have been successful in reversing the earlier appeal decision, and cases that I characterise as "near misses". I think we all know what we arc talking about when we speak of near misses, but we have to think carefully how this is captured in the regulations.
§ We also anticipate that the High Court judge would be able to order legal aid to be paid if they consider there are exceptional circumstances for the review application and payment is required now—for example, a case of real general importance to the system that they are forwarding to the Court of Appeal. As for cases that have been brought to defend an appeal decision after it has been successfully challenged at the review by the Home Office, the applicant for status shall receive funding.
§ I am not taking this power as part of some anti-lawyer agenda. There are many good immigration lawyers, but a serious consequence of widespread bad practice is that specialist immigration lawyers are all tarred with the same brush. I wish to make it clear that I am wholly committed to keeping good lawyers within the legal aid scheme. There are a number of dedicated, highly skilled immigration solicitors and counsel. We recognise that these lawyers provide value for money to the Government and the taxpayer. They help us to process cases efficiently and to get the results right first time. They deal with difficult cases, often in difficult conditions. They enable us to be sure we fulfil our international obligations, and so perform a valuable public service. There are many good lawyers active in the Immigration Law Practitioners Association. ILPA works with my department, and with the Immigration Appeal Authority, in a way that benefits the appeals process as a whole. We are grateful for their hard work and contribution to the policy process.
§ New Section 103E provides that, where an appeal decision has been made by the tribunal sitting as a panel of three or more members, a party to the appeal could bring a further appeal on a point of law with permission to the Court of Appeal. Such cases would not be subject to review in the High Court; instead, they could leapfrog the High Court and go straight from the tribunal to the Court of Appeal.
§ If the tribunal sits as a panel with three or more members, this will usually mean the tribunal has identified the appeal as giving rise to a question of law of such general importance that it may result in a starred determination being promulgated by the tribunal. Such panels may include the president of the tribunal, who of course will be a High Court judge. In such circumstances, we think it right that the right of appeal should lie to the Court of Appeal, and it will ensure the Court of Appeal will receive the appeal more quickly than would otherwise be the case.
§ Amendment No. 47A introduces new subsections (9) to (11) to Clause 14. These new subsections set out a new order-making power that can be exercised by the Lord 999 Chancellor after consultation with the senior judiciary. That will allow the Lord Chancellor to vary the time limits on the face of the primary legislation for lodging review applications to the High Court or Court of Session, or vary the time limits for specific categories of cases or circumstances. This is a sensible measure to take so that we can extend or reduce the time limits, depending on how the process works in practice, or enable us to vary it for particular types of cases if circumstances require it—for example, in relation to the fast-track cases, where the applicants are in detention.
§ Amendments Nos. 50A and 52 to 59 make changes to Schedule 2, which provides for consequential amendments and transitional provision. In particular, I would like to draw the attention of noble Lords to Amendment No. 59. It introduces the transitional measure of a filter mechanism for cases applying for a review to the High Court. This is to ensure that we do not put more cases to the High Court than it is able to deal with. The filter mechanism will operate for a limited period, until cases likely to come before it are at a manageable level. Under the filter mechanism, if a party applies to the High Court for a review under Section 103A, his application will initially be reviewed by a senior member of the asylum and immigration tribunal, who will either make an order requiring the tribunal to reconsider its decision, or refer the application to a High Court judge with his reasons for not ordering the tribunal to reconsider its decision, and notify the applicant.
§ For those unsuccessful review cases that are referred to the High Court, the appellant is required to write within five days to confirm they want the High Court to review the case as well, otherwise the application is considered to have lapsed. However, this opting in is not a further appeal right. There is only one review application under consideration. The appellant will not be able to introduce new grounds at that point.
§ The transitional provision will apply for an indefinite period until an order is made by the Lord Chancellor to bring it to an end. The Lord Chancellor will consult the Lord Chief Justice—and I will make a commitment to publish the Lord Chief Justice's advice—before making the order. If an order is made, the Lord Chancellor will also have the power later to restore the filter provision by order, if circumstances require it to be put back in place.
§ 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 interest of both genuine refugees and the British taxpayer, who should not have to fund those seeking to play the multiple tiers of appeal of judicial review and the costs that they incur.
§ I apologise for the detail of these opening remarks, but I think it is helpful in the consideration of these amendments.
§ Lord Clinton-Davis
Before my noble and learned friend finishes, would he like to say how and in what capacity he considers the advice given by the Select 1000 Committee on Home Affairs, the Constitutional Affairs Committee, and Asylum International? All of those bodies have a major role to play.
§ Lord Falconer of Thoroton
All of the points that they put in relation to the original Clause 14 were taken into account, and all of them had a significant part to play in the amendments we are now putting forward. I beg to move.
§ Lord Goodhart
We on these Benches give a qualified welcome to these new amendments. They are indeed a great improvement over the original version of Clause 14, which was highly objectionable and should never have been brought before Parliament. That does not mean that the new Clause 14 is perfect— we have a number of queries, and some criticisms of it.
Let me start with one point that is not in fact covered by the new amendment, as it is outside its scope, but it deserves to be. Under the Nationality, Immigration and Asylum Act 2002, neither adjudicators nor members of the Immigration Appeal Tribunal were required to be legally qualified. Section 81(2)(d) of the 2002 Act authorises the appointment of someone who,has legal or other experience which in the Lord Chancellors opinion makes him suitable for appointment",but under new Schedule 4 to the 2002 Act, which is set out in Schedule 1 to this Bill, all members of the asylum and immigration tribunal must have legal qualifications or experience, and I would like to know the reason for that change.
I turn to the new government amendments. In new Section 103A, what is meant by "error of law", and, therefore, what are going to be the grounds on which the tribunal can be asked to reconsider its earlier decision? Does "error of law" extend to all the grounds on which a decision might be quashed by judicial review, for example irrationality, or the absence of evidence to support a conclusion of fact? If not, since judicial review is not excluded by the new Clause 14. we could end up with a situation where a decision could not be sent for reconsideration under new Section 103A(2), but could be quashed by a judicial review. That, it seems to me, would be a waste of time, and I hope the Government make it clear that reconsideration can be ordered on any grounds that would justify judicial review if there were no provision for reconsideration of the tribunal's original decision.
Perhaps the most objectionable provision of the new clause is the time limit under new Section 103A(3), to be inserted into the 2002 Act. In-country applications must be made within five days of the communication of the original decision to the appellant. While we agree that speed is important, five days seems to be seriously overdoing it. An application will require the applicant's legal adviser to receive a copy of the decision, to read and consider it and to draft and file an application to the High Court. It may well also require a meeting with the applicant at which the presence of an interpreter is needed. Any one adviser may be handling several cases at the same time, which will make his availability that much more limited. In all those circumstances, five days is wholly inadequate. 1001 We believe that two weeks would be the minimum in which to set the proper balance between speed of decision and justice to the applicant.
I note Section 103A(4)(b), which gives power to extend the time, but this should not be used as an excuse to make the original time unduly short. I note that Amendment No. 47A creates a power for the Lord Chancellor to vary the period specified in new Section 103A(3) by order. That order is presently under the negative resolution procedure. Such procedure is permissible for an extension of time or, once it has been extended, perhaps for bringing it back to what was originally specified in the Bill. However, given the tight time limits imposed in the Bill, I believe that any order which reduces them should require an affirmative resolution. I do not know whether the Delegated Powers and Regulatory Reform Committee has considered that.
Next, where reconsideration is ordered, there should be a requirement on the face of the Bill that it should be conducted by a panel of at least three members. If a decision has gone wrong the first time it comes to the tribunal, it is particularly important that it is corrected on the second occasion. The decision of one member of a tribunal should not be affirmed or overruled on reconsideration by a single member of equal status. I believe that reconsideration should therefore be carried out by a panel of three members.
I turn to the new Section 103D on costs. It is planned to convert the cost regime for applications to reconsider and reconsideration itself into a no-win, no-fee system. I can see some justification for that in principle. It is obviously not desirable to pay for representation in hopeless cases which should never have been brought, but many cases which do not succeed are not hopeless. In civil cases, where there is a no-win, no-fee system, that is allowed for by giving lawyers a mark-up on their normal fees in successful cases. I do not imagine that that is what is intended here, but if not, it is then surely necessary that lawyers should be paid where they have reasonable grounds for appealing but were not successful and not just in those cases described as "near misses".
§ Lord Clinton-Davis
I thank the noble Lord for giving way. In all the cases he has mentioned, the Law Society, or whichever body, can consider what is appropriate initially. Therefore, the solicitor making the application automatically has grounds if legal aid is granted. In those circumstances, is it not right that legal aid costs should be awarded to the applicant?
§ Lord Goodhart
Yes, I accept that in general it is the principle that the Legal Services Commission will provide a system in which there is initial vetting of the validity of the case. I am aware of the problem here; that that is a source of considerable delay in the system. While I would welcome an arrangement by which the justification for the application was vetted by the Legal Services Commission in the ordinary way before it was made, I am not wholly unsympathetic to the Government's view, which I assume is behind the provision, that that would delay the proceedings 1002 beyond what is reasonable. If that is the Government's view, they should accept the corollary that cases which are not demonstrably unreasonable should be given, ex post facto, legal aid by the decision of the tribunal.
It therefore seems to me that if the exclusion of the normal procedure for legal aid is to be applied in this case, it should be on the face of the Bill that legal aid under new Section 103D should be refused only where it should have been apparent to the applicant's legal advisers that there were no reasonable grounds for the application. If not, the consequence will be that some applications which would have succeeded and would have led to a successful reconsideration will never be brought. That may have disastrous consequences to those who are returned to their countries of origin as a result.
§ Lord Clinton-Davis
I apologise for intervening again. Is not the remedy the noble Lord wishes to pursue something of a gamble? Certain tribunals may not like legal aid and will therefore be averse to it. Would it not be more acceptable if the committee considering legal aid applications were to speed up its consideration?
§ Lord Goodhart
That would be a highly desirable conclusion, but whether it is practicable is another matter. That is a decision for the Government and if they are not prepared to do so, they must put on the face of the Bill a provision making it clear that wherever there are reasonable grounds for making an application, legal aid will be provided ex post facto.
Amendment No. 58 provides that some decisions of the tribunal are to be treated, under the direction of the president of the tribunal, as authoritative. What is the purpose of that provision? If a decision of law is treated as authoritative, the normal rule is that only a decision of the High Court, or a court at a higher level, is binding on inferior courts and tribunals. The decision, for example, of one judge of the circuit court is not binding on another. I can see no reason to change that rule. There is no justification for making the tribunal's decision on a question of law binding on some other subsequent proceedings before the tribunal when in fact there is a procedure by which questions of law can be decided at the level of the Court of Appeal. It seems appropriate that only those decisions made by the Court of Appeal should be regarded as binding on the tribunal.
If Amendment No. 58 is also intended to provide that a decision of fact can become authoritative—for example, that a particular country is safe for particular groups of applicants—that decision should not be authoritative in other cases because it should always be open to an applicant either to give evidence of a change in circumstances in that country or to introduce new evidence, which was not provided for reasons good or bad at the earlier hearing and was therefore not available to the tribunal in making the decision now said to be authoritative.
The Government are trying to have it both ways: to have a single-tier asylum and immigration tribunal but making one decision binding on another decision 1003 maker at the same level. In other words, all decisions in the tribunal are equal, but some are to be more equal than others. That seems inappropriate.
Finally, the Bill does not deal with the most serious problem, which is made clear by almost all organisations dealing with immigration and asylum cases. That is the -unsatisfactory quality of the first-stage decisions taken by immigration officers before the matter reaches the tribunal. If the quality of those decisions could be and improved, that would do more than anything to speed up and improve the quality of decision taking in immigration and asylum cases. Although the new clause is a substantial improvement on the original Clause 14, it is still capable of considerable improvement. We shall return with the necessary amendments on Report.
§ Lord Clinton-Davis
In following the noble Lord, Lord Goodhart, may I say that I agree with his conclusions about the inadequacy of the five-day rule? It is not practicably possible in five days to assume that all those practitioners can come to a proper decision. I hope that my noble and learned friend the Lord Chancellor will conclude from the submissions made to him that that period should be extended.
As I said in my intervention, the Select Committee on Home Affairs, the Constitutional Affairs Select Committee and Amnesty International have all made valuable contributions, acknowledged by my noble and learned friend. But to imply that they are without criticisms of the present proposals is not accurate. All have concluded that there are factors attached to the present amendment that are unsatisfactory in certain material respects, among them —I can see no difference of view expressed by any of the bodies I have mentioned—that the five-day rule is utterly inadequate. I hope that my noble and learned friend will come to a different conclusion on that matter when he considers what has been said in the debate.
Certainly I share the view advanced by the Law Society that it is possible to have a swift conclusion of the representations made but that a five-day rule does not have to be applied. I agree with what my noble and learned friend said. Where I depart from him is his profession that he is prepared, initially at least, to leave the matter of legal aid to the tribunal. I consider that to be a gamble. If the procedures can be speeded up with regard to asylum, why should the Legal Services Commission not be able to speed up its own procedures? It has to conclude that there is a prima facie case that the representations that are to be made to the tribunal are adequate. It is perfectly possible for it to come to the conclusion that, prima facie, it is desirable that legal aid should be extended for that purpose.
I am also worried about a matter that was touched on by the noble Lord, Lord Goodhart. The initial decision making by the Home Office is itself seriously flawed regarding the information about the countries of origin from which the asylum seeker has fled, the credibility of applicants and their allegations about torture where such allegations are made. I should like to know what has been the response of my noble and learned friend's department to those concerns.
1004 The second tier of appeal is supposed to provide significant protections. It does not, as my noble and learned friend suggested earlier, represent an abuse of the system. But I would like to know whether he sticks to that point of view. Is that the view of the Government about all similar systems; for example, the employment tribunal and so on? Where is the Government's evidence to justify what amounts to a radical departure from what, up until now, has been the norm?
I turn to the suggestion of legal aid in relation to immigration and asylum cases. In asylum cases there is to be a system whereby the legal representatives can provide up to five hours' advice regarding the initial decision. That can be departed from if the case is "genuine and complex". Are there to be special guidelines regarding that? What does "genuine and complex" mean? I think that there is a certain ambiguity about that. In immigration cases, the initial advice is to be undertaken in three hours. But no legal aid is available for Home Office interviews, save for unaccompanied minors, people suffering from mental incapacity and those going through the fast-track decision process. I wonder whether that is altogether fair.
Provision is also made for legal aid for immigration and asylum seekers' appeals to be diminished. Is that right? In what way is that fair? Does my noble and learned friend agree that there may be further restrictions under proposed new Clause 103D regarding legal aid?
The other matter to which I want to refer—this is my last point—is the Leggatt committee, which made certain recommendations concerning the second tier. The committee formed the view, with which I am wholly sympathetic, that there should be a right of appeal on a point of law. Will my noble and learned friend say something about that?
Finally, I entirely agree that what my noble and learned friend has put forward today is rather better than what was put forward in the past—something that I wholly rejected. On the other hand, I believe that some vital matters still require the consideration of this House and of another place.
§ Lord Thomas of Gresford
I agree with every word that my noble friend Lord Goodhart said, but perhaps I may also focus on the decision by the High Court judge to return the matter to the tribunal. Subsection (6) of proposed new Clause 103A states that a decision of the High Court judge,on an application under subsection (1) shall be final".Subsection (5) states:An application under subsection (1) shall be determined by reference only to written submissions of the applicant".Therefore, the respondent—presumably the Home Office—will not be represented and will not make written submissions.
However, the High Court may make an order to return the matter to the tribunal only if it thinks that the tribunal made an error of law. In the field of judicial review, the customary position is that the High Court judge who is considering an application for leave will grant leave if he believes there to be an arguable case—not if he makes a subjective decision that the particular tribunal with which he is concerned made an error. That provision requires the 1005 High Court judge, without any representations from the respondent, to come at least to a provisional conclusion, which must have some influence on the tribunal to which the matter is returned.
When the word "tribunal" is used in subsections (1) and (2), is the thinking that the High Court judge will order the matter to be reconsidered by the member of the tribunal who heard it in the first place? In other words, does the application go to the High Court and, if the judge thinks on written representations only from the applicant that the original decision was wrong, does he then send it hack to that person telling him that, in his view, he has made an error? If that is the case, it is hardly an appeal to any degree at all. I want to underline the point made by my noble friend Lord Goodhart that, if the matter goes back to the tribunal, it should be heard by a different member of a different panel of three members of the tribunal.
§ The Lord Bishop of Newcastle
At the end of the debate on Second Reading, the noble Lord, Lord Kingsland, set out three conditions that any replacement of Clause 14 should fulfil. They were: the right of appeal to the Court of Appeal and onwards; the reinstating of the supervisory powers of the higher courts; and improving quality so that any new system is better than the present one.
I, like other noble Lords, very much welcome the reinstatement of the right of appeal. It is important for refugees, whose causes may throw up very complex cases of law, fair procedure and, indeed, the interpretation of the convention relating to the status of refugees, that the right of appeal should be reinstated.
However, I also share the concerns of other noble Lords about the practicality of the five-day time limit. It seems to me to be far too short. No one knows when the decision will come through. The decision must be read, instructions must be taken from the appellant, interpreters must be found and an application to the High Court prepared. I fear that submissions will be very hastily prepared, and that is a recipe for neither good quality nor efficiency. In any case, children's charities and those working with refugee children already report difficulties in finding good legal aid representatives. The demand far outstrips the supply, and many hours are already spent trying to find a good lawyer who is willing to take on the case. This very tight time limit will simply make things even more difficult, and I hope that the measure will be reconsidered.
I also worry about the no-win, no-fee scheme of payment, if that is how it is to be described. Or is it a no-win, no-fee but near misses will be funded as well scheme? Surely making people ineligible for the funds to pay for an appeal when they are already destitute could have the simple effect of preventing them appealing altogether.
Of course, I acknowledge that the whole asylum system is difficult. and we have many concerns about its present quality. At a recent tribunal hearing, the then Dean of Newcastle, who was there in support of 1006 a regular worshipper at the cathedral, was asked by the chairman of the tribunal, "Tell me, is the cathedral mainstream religion or is it some kind of way-out sect?". Such incidents do not fill me with much confidence in the quality of the system that we have at present.
I have real concerns about the five-day limit. I have concerns about the no-win, no-fee arrangements, which will make immigration and asylum an even less attractive area for lawyers to practise in. We know that the best protection against bad representatives is a sufficiency of good representatives. Of course, the Government are working very hard to ensure proper regulation in this field. That seems to me to be the best way to go rather than using conditional fee arrangements.
I want to make one last comment on the subject of supervision. Why is it necessary for the application for review to be by written submission only? Why not allow the court to determine whether it wishes in exceptional cases to hear oral arguments? Surely we can trust our judges to exercise such a power both wisely and well.
§ Lord Donaldson of Lymington
It is necessary to consider the Government's amendments both for their own merits and because this is a very important occasion when an ouster clause was taken far beyond any limit that anybody in the past had considered. That clause has now been reconsidered by the Government and we have these amendments. I want to underline the fact that this is not a trifling change; it is something almost and possibly actually historic.
I shall deal with three points raised by the noble Lord, Lord Goodhart. First, I shall comment on error of law. I hope that there will be no attempt to define an error of law, cynically perhaps because I have always thought that the ability of the judiciary was to regard what others might ignorantly regard as an error of fact as being an error of law. Such a definition would deny a degree of flexibility which is highly desirable.
The second aspect is that I have never understood it to be suggested that any of the grounds upon which the Administrative Court—as it is now called—has acted in the past was other than an error of law. I served for quite a time in that court and I never thought that there was any doubt about that. Wednesbury springs to mind. In the early days of Wednesbury, and comments about it, the logical basis for Wednesbury was that the Minister concerned was of course a very reasonable man. All Ministers of the Crown are irrebuttably reasonable men. So if he reached an unreasonable conclusion it must be because he failed to take account of something which was relevant, or took account of something that was irrelevant, and that was necessarily an error of law. Subsequent cases have said that you do not need to go through that rigmarole—it is sufficient that unreasonable decisions can be set aside or omitted. I hope therefore that that will be left like that.
1007 The question of reconsideration has caused me some surprise because I had assumed that any remission to the "tribunal" would be a remission to the same tribunal—whatever kind of tribunal it is: whether three men, one man, or whatever. While I can see the advantages or merits of the suggestion of the noble Lord, Lord Goodhart, that the appeal should go back to a different tribunal, that would be a very different proceeding because the new tribunal would have to start again. In a typical situation, if the reviewing body sent the decision back for reconsideration, it would be on the basis that the tribunal has omitted to look at something or failed in some other respect. That could well be a Wednesbury situation. But the man who made the original decision would be in the best position to correct it, in the light of direction and advice from the reviewing body. If the appeal goes to an entirely different tribunal then that is a different animal. There would have to be rules or procedural arrangements to enable that new body to start again, with the awful possibility that, having started again, there might be entirely fresh grounds for objection or asking for review. It would be quite impossible to say that there could not be a second review or anything of that sort.
The other point concerns Amendment No. 58. I agree with the objections and criticisms of the noble Lord. Lord Goodhart, that you cannot have a tribunal deciding at its own level that decisions shall be authoritative, short of the much higher level of the Court of Appeal, where that does apply—although there are devices for distinguishing earlier decisions on the grounds that perhaps it was a two-judge court. I once had the privilege of sitting with Lord Denning in just such a case, who said, "I have decided that, on an interlocutory matter, in this particular appeal, but I do not think I was right. We will therefore ignore it". It seemed to me, as a junior member of the court, to have a lot of merit on those particular facts. I assumed that it was not going to become part of the jurisprudence of the court.
Amendment No. 58 has a point, obviously, that where you have multiple tribunals—which will inevitably be the case—and parallel courts, as far as possible they should sing from the same hymn sheet. I assume that Amendment No. 58 is intended to produce that result. The amendment could produce that result if it had a persuasive rather than a binding provision so that it would be open to other tribunals to depart from it to some greater or lesser extent.
There is a lot to be said against matters of fact being even of persuasive authority, although it is not as objectionable as a binding authority would be. But that could be ameliorated to some extent if one considers what question of fact will be of binding authority. It cannot be a fact peculiar to the applicant, because it would never be the same. On the other hand, it could be a matter of enormous importance, such as 1008 what is a safe country. I do not know the answer to that dilemma. I merely support the suggestion that there is a dilemma.
§ Lord Mackay of Clashfern
I certainly warmly welcome the fundamental change of stance which the amendment, moved by the noble and learned Lord the Lord Chancellor, signals in respect of Clause 14. Nothing that I will say hereafter is intended in any way to detract from that. These amendments are a huge improvement on what went before, but perhaps they are capable of some further improvement.
I will look first at Amendment No. 46A and Clause 103A, which it is proposed to put into the Act. I do not intend to raise the question of the time limit—that will have to be the subject of an amendment. The noble Lord, Lord Goodhart, indicated that he will table such an amendment at a later stage. However, I can see arguments that are important in that connection.
Subsection (5) of the amendment states:An application under subsection (1) shall be determined by reference only to written submissions of the applicant".Obviously, a decision under review would require to be referred; it cannot just be a matter of the submissions of the applicant. When it states,reference only to written submissions of the applicant",that is a slightly over-emphatic way of saying what is intended. It must be right to allow written submissions from the respondent; otherwise, a court may overlook a fundamental point. It is exceptional to hear only one side in a judicial process. I know that it happens in relation to leave in the ordinary case. But I would have thought that the court should have power to have, if it wanted, written submissions from the respondent.
That brings me to mention the very moderate statement made recently about judicial decisions by the Home Secretary. I was wondering whether he was aware that the difficulty that he had was because the Home Office, or whoever in government was responsible for these matters, was seeking to oust the jurisdiction of the court to deal with interim matters such as bail. That was so successful that apparently no appeal was left unless judicial review was opened. I just wondered whether the Home Secretary was aware that that is how the situation was brought about.
I assume also that the application under subsection (1), referred to in subsection (5), may well be dealt with by a reasoned decision, so that the judge's reasons for sending the case back will be before the tribunal. I hope that it would be within the power of the judge to decide whether the case should go back to the same or a different tribunal. For example, if the error in law concerned the bias of the tribunal member who decided the case, it would be unsatisfactory for the matter to go back to him or her. So, I think that it would be right to leave the judge the power to decide the issue in relation to the circumstances of the case.
I also welcome in principle the filter mechanism in Amendment No. 59, to which the noble and learned Lord the Lord Chancellor spoke. If I heard him right, he said that the review would be entrusted to a senior 1009 member of the tribunal. I do not notice that in the clause, but it may be that seniority is to be inferred without reference in this situation, as in some others.
So far as concerns treating a decision of the tribunal as authoritative in respective of a particular matter, I am not clear what is intended by that. Is it authority for the tribunal itself? If so, it must be only so long as it stands because it is open to be set aside by the Court of Appeal. I cannot remember a previous example of that. The noble and learned Lord may have some examples in mind, but there are none in my mind at the present moment. That may be due to lack of recollection rather than to absence of fact.
I should like to say a word or two about the legal aid provisions, which are supposed to be a no-win no-fee type of arrangement. My understanding of the no-win no-fee type of arrangement is that where it applies and there is no win, there is in fact no fee. In other words, in that situation the lawyer is not in a position to charge his client. This arrangement is not of that kind. So far as I can understand it, it is a legal aid arrangement. Therefore, even if the lawyer loses, he may still be entitled to charge his client. What the right reverend Prelate said about that must be relevant.
The other point about the lack of uplift, referred to by the noble Lord, Lord Goodhart, is of course relevant. One purpose of the uplift is to enable genuinely borderline cases to be taken, so that the lawyer would not refuse to take a case simply because the chances of success were not greater than 50:50.
Incidentally, the legal aid position, as far as I can understand the section, does not apply to Scotland. There must be some extremely good reason for that. I expect that legal aid is a devolved matter. I am not certain what the reason is, but the section does not apply to an appeal decided in Scotland. One can envisage certain types of appeal in which there might be some pressure to go to that beneficial jurisdiction to have the case decided.
The provision that troubles me, although I can see the reason for it, is that there can be only one application to the High Court in any appeal. As a result of the decision to refer the case back to the tribunal, one can see that a different line might be taken than was taken on the first occasion. The judge's reasoned decision might well aid that, or help to cause that to happen. If that happened—in other words if the grounds of the decision of the tribunal were very substantially different from the grounds of the first decision—I think that it would be unfair to prevent a second application. I can see the trouble that would be caused by a number of applications being taken in the same appeal. I can see the desire to stop that. I can also see occasions in which restricting the number of applications to one might create a manifest injustice. I hope that it would be possible to leave the court to deal with that. The review mechanism—that is the filter mechanism—so long as it lasts might produce one way to handle that.
As l said, this provision is a great improvement on what we have had before, but I hope that the noble and learned Lord will be prepared to improve it further. I 1010 am particularly glad that the amendment confers powers on the Lord Chancellor rather than on the Secretary of State for Constitutional Affairs.
§ 4.15 p.m.
§ Earl Russell
When Sir Henry Slingsby, MP for Knaresborough in the Long Parliament. sat down to write his memoirs, the rudest thing he could think of to say about the time he had lived through was:These be times for historians to write".The noble and learned Lord, Lord Donaldson of Lymington, when he said that the original version of this amendment was "almost historic", I think could safely have cut out the qualification. If it had gone ahead it would have been. I am immensely grateful to all those concerned who have put a great effort, both public and private—and I suspect the private in some cases is more important than the public—into ensuring that we did not have a historic battle. I welcome the body of these amendments in that spirit. However, that does not mean that we are not subject to the ordinary disagreements of parliamentary life as this needs to be considered, as my noble friend Lord Goodhart suggested, very much in the spirit in which we consider any new legislative proposal.
I always enjoy listening to my noble friend. I do not think I have ever heard him speak quite as well as he has today. The five days is a point on which practically the whole House seems to be agreed. Two recent developments have made the five-day limitation a great deal more unreasonable than it would otherwise be. The first is the relic of the policy of dispersal. We have all heard my noble friend Lord Greaves talking about the difficulties of attending at Croydon at 9.30 when one has to travel down from Lancashire and one has no money for fares.
The other reason why five days has become more unreasonable is the rapid decline of the postal service. We do not have to believe the "Despatches" programme for that. According to Sunday's business section of the Observer, the Post Office is liable to face fines of £80 million for having missed almost every one of its performance targets. My own record is the time when my whip took 16 days to travel from Westminster to Kilburn. Under these circumstances, requiring the lodging of an appeal within five days does in many cases fall foul of the maxim that the law does not compel the impossible. We really are going to have to think again about that.
I will say just a little bit about what was wrong with the initial amendment, not in any critical spirit, but because I am sure that all of us, including the Home Secretary, do not want to end up here again. In fact, it is important that we should not. The original amendment, in words that reversed the judgment in Anisminic, said that one could not condemn a decision of a tribunal by reason of lack of jurisdiction, irregularity, error of law, breach of natural justice, or any other matter. It is the definition of a sovereign power that it can do what it likes, and it cannot be corrected but by itself. Those words conferred something similar to the powers of a sovereign power on the court in that particular matter. It is by claiming powers 1011 like this, in what used to be described as lex parliamenti, that parliaments in the past have found the power to condemn judges, Ministers, Privy Counsellors and even Lord Chancellors for offences as severe as treason.
Sir Thomas Wentworth had a point when he said, "they say God deliver us from his arbitrary government; I say God deliver us from their arbitrary treason". It is not in the Minister's interests to encourage courts to think that they are capable of taking powers as arbitrary as this. Purely in their own interest, I hope that they will never do it again.
I was interested in some of the points made by my noble friend Lord Thomas of Gresford. The difference between believing a case is probably right and believing that it is arguable is like the watershed between the St Lawrence and the Mississippi. It is very flat ground; it may be almost invisible; but it makes a difference of many thousand miles to where the water ultimately flows. I hope that the remarks made by my noble friend will be taken with the seriousness that they probably deserve.
I was also taken by his point about whether the case is to be referred back to the same person. When one is asked to review one's own decision, one inevitably bears the appearance of being judge and party in one's own cause. Purely casually, I happened to find in the course of reading, rather late last night, a case where that was roundly condemned from as early as 1220, and it was stated as a long-established principle that it was assumed everyone already knew. The reflexive character of that was one of the things that was wrong with the original Bill. I do not want it coming into the amended version by the back door. James Bond once turned to swear at Goldfinger, and got the reply, "Even I am incapable of that, Mr Bond". We do not want to get into that situation either.
I share the anxiety that has been expressed about conditional fees, but I will not develop it any further. I have a lot of sympathy with what has been said on the question of what is authoritative. I remember a story that Jeremy Thorpe used to tell about a counsel who had a case that had been before that judge before, some 20 years earlier, on the basis of which counsel, most unwisely, had assured his clients that victory was certain. The judge judged the other way. Counsel, white as a sheet, said, "But these facts have been before you before, my Lord". "I know, but they do not appear to me now as they appeared to appear to me then". Statutory provision that a decision shall be authoritative will cause very great difficulties to our present judges' successors. We should be wary how we do it.
With those reservations, I should like to join the universal gratitude to Ministers, intermediaries, senior persons, Members of the Opposition Front Benches— in fact to everyone—for showing the spirit of moderation and compromise for which this House is justly famous and for which I am extremely proud to have the privilege of belonging to it.
§ Baroness Carnegy of Lour
I wonder whether, as a complete amateur in these matters, I might ask the noble and learned Lord a question concerning 1012 Amendment No. 47A, and how the five-day period might be varied. As I understand it, it would be done by an order subject to annulment, after consultation by the Lord Chancellor with the head of the judiciary of the part of the country concerned.
I was not able to be at the meeting of the Delegated Powers and Regulatory Reform Committee this morning, but looking at the manuscript report, it seems that the committee accepted that this order should be subject to annulment, not after agreement by both Houses. I wonder what the problem is with this. Is it the case that the Lord Chancellor intends that the variation of, say, the five days might be different in different parts of the country in different circumstances? In his letter to the Delegated Powers and Regulatory Reform Committee, he pointed out that this order will interact with the rules of court. I am not sure whether the rules of court are different in Scotland and England. Perhaps I should know that.
Is the problem that, say, for Parliament discussing this matter, different periods might relate to different circumstances—for example, whether the asylum seeker was in detention or not, but also for different parts of the country, and how the courts were working? I can see that the head of the judiciary would know whether there is a problem about five days in one part of the country, whereas another head of judiciary might not know about that particular problem. I wonder if the noble and learned Lord, when he replies, could clarify that point. I hope that I have explained it properly. It is slightly difficult for me to do it concisely.
§ Lord Ackner
One should not overlook, in the congratulations that have been referred to, congratulating the former Lord Chancellor. It was, after all, his initiative to put his name down to fight the ouster clause that caused this Government to think again.
I know no more powerful argument for the retention of the Lord Chancellor than what happened in relation to the ouster clause. The existing Lord Chancellor was prepared to back it. It was only a former Lord Chancellor who decided to break his vow of silence and speak against it that caused this Government to repent. The previous Lord Chancellor did not even have to open his mouth. He merely indicated that he would open his mouth unless the Government thought again. That shows how essential it is that there is some power concentrated somewhere in order to make the appropriate resistance to what was a perfectly monstrous proposal to deny the public a right of access to the courts.
I make a number of points. As regards the reference throughout to "the Lord Chancellor", what happens if and when there ceases to be a Lord Chancellor? Is all decided by the Secretary of State for Constitutional Affairs when it is accepted that he could well not be a lawyer and that he ought to be in another place? Where is the independence which is assumed to exist here? The Lord Chancellor is the person who makes the serious decisions. What happens when he goes?
I turn to a point of law. Do the Government accept that, for instance, a failure to comply with the rules of natural justice is a point of law? The rules of natural 1013 justice have been defined as being merely the elementary rules of fair play in action. Technically, that does not sound like a point of law although I appreciate that it has often been so treated. If the Government accept that it should continue to be so treated it ought to be said clearly.
I fully appreciate and support the speeding up of the processes. That is best achieved through the filter system. We in this country do not realise how fortunate we are with the degree of tolerance which has been shown as regards filters. It does not exist on the Continent. Some time ago, Italy was aghast at the time it took for appeals to be heard. It decided that it would bring in a very moderate filter system. It was thrown out with indignation. It was said that everybody who wants to appeal should have the right to do so. But our system is rightly shot through with filter systems. I do not object to them in any way, as long as they are fair.
On that subject, I do not accept, as others have said, that the court must think that the tribunal made an error of law. That really requires the "court of appeal", to reach a firm decision when it is accepted that the respondent has not entered any material on his behalf and when at that stage it has always been accepted that a good, arguable case is wholly sufficient. There is a distinct difference between saying, "I consider that there has been an error of law" and saying, "It is fairly arguable that there has been an error of law". It may not be workable, but there should be situations where, for example, the "appeal court" could say that, as the suggested error in a case is lack of jurisdiction, it would like to hear what the respondent says. On that kind of point, having heard the applicant and respondent, the court should decide that there has been an error of law; the matter should not be sent back to the tribunal for it to reconsider what is a pure point of law that should be easily definable in those circumstances.
I do not repeat what has been said about five days being too short. But, for my own education, I invite the noble and learned Lord the Lord Chancellor to give us a short snapshot of where legal aid begins and what are the earlier decisions when it is refused so that the prospect of getting forensic help is unlikely to have been achieved. That is all I have to say at this stage.
§ Lord Kingsland
It is not often that a Member of the Opposition Front Bench congratulates the noble and learned Lord on one of his amendments—but that I do.
As the noble and learned Lord rightly pointed out to the Committee, we did not move our amendment for a very simple reason. The three fundamental criticisms that we had of the Government's original Bill are met by the noble and learned Lord's own amendment. First, the Government have rightly and thankfully expunged the ouster clause. Secondly, they have restored the right of appeal to the Court of Appeal and then on to the Judicial Committee of your Lordships' House. Thirdly, and perhaps more controversially for some Members of the Committee, they have taken the two stages of adjudicator and tribunal and reduced 1014 them to one. We support all those components of the Government's amendment. But we do have things to say about it.
I start with a point which has troubled a number of Committee Members and that is the distinction between an error of law and a point of law on which normal appeals are based.
I do not know whether it is true, but there may have been an element of confusion in translating the old Section 101 of the Nationality, Immigration and Asylum Act 2002 into the new Bill.
The new Section 103A states,A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appear".Under the 2002 Act there was an additional stage of appeal. It was not just an appeal from the tribunal; hut, first, from the adjudicator to the tribunal and then an appeal further from the tribunal. The former appeal was dealt with in Section 101 of the 2002 Act. I make no apologies to the Committee for quoting from it. Subsection (1) states,A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law".Subsection (2) states,A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal's decision on the ground that the Tribunal made an error of law".So in the 2002 Act the issue of error of law arose only if the tribunal, itself, refused an appeal to itself from the adjudicator on a point of law. The issue is whether the Government have now deliberately substituted "error of law" for "point of law"; or whether there is some other reason, which I have not yet fathomed, to explain why the translation of the first two subsections in Section 101 has not taken place in the way in which the Committee would have wished.
I turn now to the second question that I wish to raise, which is about the transitional provisions. I know that the noble and learned Lord the Lord Chancellor has been under a certain amount of pressure from the noble and learned Lord the Lord Chief Justice and the Administrative Division of the High Court to introduce into the Bill a filter stage. The reason for this is that the judges, in my view rightly, discern that, without this filter, the administrative court would be engulfed with applications from the tribunal now that there is only a single stage.
My concerns are not about the principle but about two aspects of the way in which the noble and learned Lord intends to implement the filter. The first aspect has been referred to already by the noble Lord, Lord Goodhart, and a number of other Members of the Committee—that is, exactly what are the arrangements internal to the tribunal which will ensure that the principles, to which the Committee rightly adheres in matters of appeal, are properly respected'? The noble Lord, Lord Goodhart, was quite right to ask the noble and learned Lord the Lord Chancellor to give as much detail as is necessary to reassure the Committee that these principles will be respected.
1015 On the issue of reconsideration, I share the view of the noble and learned Lord, Lord Donaldson. In normal circumstances—for example, where the tribunal has misdirected itself in law—I see no reason why the matter should not be remitted by the High Court to the same tribunal to reconsider it. However, there may be circumstances in which, for example, a member of the tribunal had certain characteristics which ought to have led to his or her standing down rather than hearing the case. In those circumstances, clearly the tribunal that rehears the case would have to be a different one. In sum, in my submission, the Committee will need to see more on the face of the Bill about the way in which the process of reconsideration will operate in practice.
My second concern about the filter is its open endedness. In my view, it is very important that pressure is brought to bear on the system to improve the quality of decision making at lower levels. If the filter is there indefinitely, in my submission, that pressure on the system will not be there.
We all know that the reason why there is such a high volume of appeals throughout the system is because of the poor quality decision making at the Home Office interview stage and at the adjudicator stage. If no changes are made in those areas, the filter will be there permanently. So I think it is desirable that the House should have the opportunity, every two or three years, to look at how the system works to ensure that the filter is not simply used as an excuse for not committing appropriate resources at the interview and tribunal stages to get better quality decision making.
The Committee is familiar with the issues and I do not intend to go into them in detail today. I simply propose to remind the Committee that at the interview stage we believe it important that not only is a tape-recording made of the interview but also that a transcript of what is said is subsequently produced and that the legal aid provisions are a great deal more generous than those recently implemented by the Government.
I have equal concerns about what is likely to happen at the new single tribunal level. I hope that I am wrong—but I cannot resist the temptation to say it— in suggesting that I fear that the new single tier tribunal will simply mimic the existing adjudicator system; in other words, the Government are saying that they are merging the adjudicator into the tribunal but what they are really doing is merging the tribunal into the adjudicator system. In my submission that would be unacceptable.
It is especially unacceptable to have in any future tribunal a single legally-qualified person taking the tribunal decision. Such a decision will be the only occasion in the immigration and tribunal system when the credibility of an asylum applicant is examined objectively. There is to be no appeal on the facts. There is clearly not an objective analysis at the Home Office stage because the Home Office has a particular view about the way in which the system should operate. So the tribunal stage is the only moment when the facts are objectively considered.
1016 In my submission, it is essential that the Government ensure that each tribunal has at least two, and normally three, members to consider all the factual aspects of an asylum seeker's application. The issue of credibility, more than any other issue, determines the outcome of tribunal decisions. In this regard, I support what I take to be the proposals of the noble Lord, Lord Goodhart, that at least one, and preferably two, lay members should always sit when a tribunal decision is taken. Lay members are at least as well qualified as judicially qualified members to assess issues of credibility and it is unacceptable that only one adjudicator should undertake that responsibility.
My third concern is the lack of anything in Clause 14—or, indeed, in other parts of the Bill—to deal with matters of expedition outside the tribunal process. The biggest delays in the immigration and asylum system are those that occur between the time that an asylum seeker makes his application and the time it is determined by the Home Office. There is nothing in the Bill to impose time limits on this phase. It would be, in my submission, an enormous improvement to the operation of the system if such a provision were made.
Equally, there is no time limit imposed between the moment when the tribunal phase, and any appeals from it, is finally terminated and the moment of deportation, if, indeed, the result of the judicial process is adverse to the asylum seeker.
I sought, in my amendment, to provide a solution to this problem. I had at the time some doubts about the degree to which it fitted the Bill, and so I was not surprised to be criticised by the noble and learned Lord for it. He kindly sent me a letter on 27 April and I cannot resist quoting part of the final paragraph to the Committee. The noble and learned Lord stated:In particular, it is meaningless for the tribunal to set a date—I say, parenthetically, that I sought in my amendment to set a fixed date after the tribunal decision was made for a person to be deported if the tribunal decision was adverse. I repeat:In particular, it is meaningless for the tribunal to set a date, as a person may assert there is new evidence that has come to light and needs to be considered, otherwise their removal is unlawful. The claim of new evidence can be made by way of judicial review against the removal directions or in further representations to the IND who have to make a decision on new evidence".I accept that my amendment was imperfect; but I do not accept that it is beyond our joint abilities and imagination to find a statutory solution to this problem. We opposed the ouster clause; but we support a general approach to these matters that sets in place a statutory regime which covers all eventualities in the immigration and asylum system.
I understand what the Government are saying to me—that judicial review is inevitable at the deportation stage and there is nothing we can do about it. The Government have certainly said nothing about the deportation stage in the Bill. It is almost inevitable that every decision by the statutory system which results in deportation will, in a very high number of cases, lead to a further judicial review when the moment for deportation arrives. Surely it is much better to devise a scheme within the Bill which covers all the issues likely to arise on deportation by 1017 Asylum and 1017 statutory measures. In that way, judicial review will become otiose. Otherwise, all the problems that all political parties have been concerned with, over all these years, will re-emerge in the old way.
I shall be most interested to hear from the noble and learned Lord the Lord Chancellor whether the Government, having thought further about the matter, propose to introduce an amendment on Report which would draw all these deportation issues into the mainstream of their statutory approach. Perhaps the statistics exist and I have negligently overlooked them; but I would be interested to know whether there are any which establish the ratio between the number of orders made for deportation and the number of individuals who have actually been deported. I do not know whether those statistics exist, but if they do, it is important that your Lordships are made aware of them.
I find myself in some difficulty over the question of five days. In my amendment I recommended that the time period should be seven days, which is not a great deal longer than five. I understand the arguments about a longer period; perhaps the matter ought to be further canvassed on Report. But I, for my part, think the period should be short—whether it is five, seven or 10 days can be a matter for further investigation.
As to the point about legal aid, I respectfully share the view expressed by the noble Lord, Lord Goodhart, which I seek to summarise—I hope not incorrectly, but, I am sure, inadequately—by saying that if an advocate were reasonably satisfied that there were reasonably arguable grounds for believing that an error of law had been made, then that, in principle, ought to be enough to ensure a grant of legal aid.
While I support the efforts of the noble and learned Lord the Lord Chancellor to remove wholly inappropriate cases from the scene by limiting legal aid, nevertheless it is, in my submission, important for your Lordships to bear it in mind that at the end of the day, for some of these individuals, the decision whether or not they go home is a matter of life and death. Given that that is the background, I think that the Government ought, on balance, to err on the side of generosity in dealing with legal aid. However, we shall return to that on Report.
In the mean time, I should like to say, once again, that in broad terms the Opposition support the Government's amendment.
§ Lord Ackner
Before the noble Lord sits down, could he help me on one point which he has made? I take his point that there should not be a tribunal of one; I accept that the tribunal should consist of three people. However, he also said that the tribunal might consist of two. Does he agree that that would open up a new danger?
I have always taken the view that a tribunal of two is very unsatisfactory. The risk of a compromise decision. which is an undesirable decision, is always on the cards. If you sit as a tribunal of two and are the more senior of the two, you go through a period of anxiety wondering whether your colleague might 1018 suddenly roar off on a frolic of his own and how on earth to get him back. I ask the noble Lord to reconsider his choice of two as appropriate.
§ Lord Kingsland
I have, on occasions, appeared in front of tribunals of two, both at the Divisional Court and Court of Appeal level. In most cases, since both judges were against me, the addition of a third person would have been academic.
I, of course, agree with the noble and learned Lord about the desirability of a tribunal of three. The only reason that I suggested a tribunal of two was to try to help the noble and learned Lord the Lord Chancellor on this issue. I understand that sometimes immigration and appeals tribunals sit as tribunals of two, with one legally qualified and one lay member. I know that one aspect of the Bill that the noble and learned Lord the Lord Chancellor will be bearing in mind is that of cost. I was trying to help him in coming to a view about what I regard as an extremely important matter by saying that it might, in certain circumstances, be acceptable to have a tribunal of two. I am trying to avoid a tribunal of one; but I of course, accept that in an ideal world, the number is three.
§ Lord Falconer of Thoroton
I am very grateful for the welcome from all sides of the Committee for our proposals to amend Clause 14. I am also very grateful for the many constructive points that have been made. Although this is similar to a Second Reading debate in some respects, I think it is right that I should reply in detail, without taking too much time on the individual points made.
The noble Lord, Lord Goodhart, asked why there was a difference between the legal qualifications required for the single-tier tribunal and that which was in place under the Nationality, Immigration and Asylum Act 2002. He rightly drew attention to the fact that the requirement for legal qualification was not there before, whereas it is now. However, the Bill provides that, for someone to be a member of the single-tier tribunal, the equivalent of seven years' legal qualification can also be sufficient. The reason is that we think in very many cases, contrary to what the noble Lord, Lord Kingsland, suggests, some decisions made by the single-tier tribunal will be decided by a member of the tribunal sitting alone. We therefore think that the higher qualification level should be set.
The noble Lord, Lord Goodhart, also asked what is meant by an error of law for the purposes of the statutory review. It is the same as is meant by "error of law" in Section 101 of the 2002 Act—not point of law, but error of law. That is the approach that is currently taken in relation to statutory review. It allows the statutory reviewers in effect to apply the same approach in determining whether there is a relevant error of law, as would be applied in relation to judicial review.
I rather agree with the noble and learned Lord, Lord Donaldson of Lymington, that it would be unwise to try to be too precise in the definition. However, could it include lack of jurisdiction? Could 1019 it include failing to apply the rules of natural justice? Could it include having no evidence at all on which the conclusion could have been reached? Yes, it plainly could—all those factors would be regarded as errors of law. The distinction that we have sought to draw is that statutory review is based on a legal error, not simply an attempt to re-hear the facts again a second time. That distinction is well understood.
On the five-day period, in the majority of cases, legal aid will have been available to the applicant in relation to the conclusion of the hearing before the single tier. That legal aid would include a determination of whether there were any grounds for appeal. Five days will mean five working days, so there will be a week within which lawyers can consider whether there has been an error that justifies an application for statutory review. We believe that that is sufficient, because there is specific provision in the amendment for extensions of time to be granted when it is not reasonably practicable to put in the notice.
The five-day period begins when the appellant or applicant receives notice of the determination. I take the point about the post, but all such matters can be dealt with in the tribunal's discretion. We think that a short time limit is very important because these matters should be dealt with with reasonable expedition. In effect, it will be for the High Court or the filter to determine whether the five-day limit proves to be adequate, but we think that it will.
Reconsideration by three members of the tribunal was mentioned by several of your Lordships. If statutory review is granted and remitted to be heard, who should hear it? Should it be heard by the same individual who heard it before, should it always be heard by a different tribunal, or should there always be more than one member on the rehearing tribunal? The answer will depend on the circumstances in each case.
The president of the single tier has the power to direct whether there should be a reconsideration. If the statutory review indicates that a hearing should be by a different tribunal, then so be it. If he or she indicates that it should be heard by a tribunal sitting with more than one member then, almost invariably, the president of the tribunal will comply or follow that recommendation. If the president thinks that something else should happen, he can determine that. I do not think it would be right to say that it must be one or the other, such as, "It must always be a different tribunal" or, "There must always be three members". That would not be appropriate. It would not lead to the most just or expeditious result.
What we are aiming for in relation to the costs regime is some appropriate measure that ensures that only meritorious cases get legal aid. If there is no win or no near-miss, then there is no fee. Who will determine whether that is the position? It will be determined by the person at the end of the process who sees all the material. In effect, it will not be the Legal Services Commission—some body that is in some way related to the Government—but independent judges who will determine where the line is to be drawn.
1020 I agree that we need to debate quite carefully how we define "near-miss". We are not that far apart in the House. The measure is intended to deal with those cases that have a sufficiently high degree of success to justify support being given. However, that support will be given at the end and I recognise that risks will be taken. Contrary to what the noble Lord, Lord Goodhart, said, I take the view that we may well need to consider success fees for those who are successful because there must be enough good lawyers in the field to ensure that every meritorious claim will receive representation.
§ Lord Goodhart
Since the matter can go back to the tribunal for reconsideration only after a High Court judge has taken the view that he thinks—or, if the provision is amended as we have suggested, that there is at least a good arguable case—that there has been an error of law, is that not enough on its own to justify extending legal aid to the application when the case goes back to the tribunal for reconsideration?
§ Lord Falconer of Thoroton
I accept the implicit premise in the noble Lord's point. Plainly, in ordering reconsideration, the High Court is bound to be setting the test lower than one that it is bound to win and there must be some degree of arguability about it. However, that does not lead to the conclusion that the moment one gets past that point one immediately gets legal aid. It may often be apparent that, even though an error of law can be identified, if the facts are re-examined, the case still has little merit. I do not say for one moment that that would happen in every case. However, we could frequently be in possession of facts that broadly indicate that time has been wasted in relation to an application.
I am not saying that that is the position in every case. However, an error of law could be identified because the wrong test was applied. If one knew from all the facts available that, even if the right test were applied, there would be little prospect of the application being granted, should public money be spent on that sort of claim? I believe that it should not.
§ Lord Clinton-Davis
Is what the noble and learned Lord advocates totally unprecedented, or can he point to some example of the provision being applied?
§ Lord Falconer of Thoroton
Several examples could be provided. The proposal was first put to the Government by the judges. It was their proposal because they were keen to ensure that there was a sufficient degree of filter on cases. The original example given was in relation to criminal appeals where the Court of Appeal Criminal Division makes decisions in relation to criminal legal aid. That is not a direct parallel because, although there are similarities, 1021 it is not completely the same. However, whether the scheme works depends on the judgments that have been made to ensure that enough people are in the field. I believe that the judges would be right. Sufficient discretion will be given to ensure that the flow of legal aid is focused on the winning cases and on those cases that do not win but were sufficiently meritorious to justify consideration at another level.
Amendment No. 58 relates to giving some tribunal decisions authoritative status—that they would be binding on other tribunal decisions. That is a sensible and right approach. It allows certain decisions to be binding in other tribunals to ensure consistency in relation to practice in law. If there is an issue about whether the decision is right, either new facts could be presented or there could be an appeal to the Court of Appeal.
I agree with all those who said that there should also be improvements to the way in which the original decisions are made. As noble Lords know, the Government are committed to much higher-quality asylum decisions at all stages. This is not the time to go through the list of provisions, but they include setting specific targets for decision quality, introducing quality assurance systems involving internal and external assessment, enhanced training and other such matters. We all accept the need for the highest possible decision-making at the IND stage. However, that is not t reason for not dealing with the appeal arrangements, or the relationships between the appeal arrangements and the High Court.
My noble friend Lord Clinton-Davis mentioned the latest proposals. It is important to recognise that the Leggatt report did not propose a one-size-fits-all approach for asylum where there is incentive to delay. It is important to design a system for the needs of this particular jurisdiction. The arrangements that are now being put forward do precisely that.
I have considered the points made by the noble Lord, Lord Thomas of Gresford. He is concerned about the error of law, which I have dealt with. He believes that matters should always be dealt with by a different member of the single tier. I dealt with that by saying that everything will depend on the facts.
The right reverend Prelate the Bishop of Newcastle mentioned the five-day appeal period, "no win, no fee" and good decision-making, with which I have already dealt. He also mentioned written submissions. He asked whether the statutory reviewer should have the opportunity to order an oral hearing. That issue also has been discussed with the judiciary. The statutory review process currently does not involve that. We believe that the most effective system to balance justice and reasonable expedition is that which allows for cases to be dealt with on the papers. If further submissions are required they can be dealt with by the body to which the matter is remitted.
The noble and learned Lord, Lord Donaldson, raised the issue of errors of law. I have already addressed that. I have also addressed the issue of 1022 remission. He opposes the idea of Amendment No. 58, but I think that it is a good and sensible course. Consistency in these matters is quite important.
§ Lord Donaldson of Lymington
On the question of remission, it is clear that I took one view and the noble Lord, Lord Goodhart, took another as to what was meant by reconsideration. Perhaps the noble and learned Lord would like to give us some assurance that that will be looked at with a view to making it quite clear that his flexible approach will be open.
§ Lord Falconer of Thoroton
I certainly agree to make sure that that is made clear in the most appropriate way—which may be by including it in the rules rather than placing it on the face of the Bill.
The noble and learned Lord, Lord Mackay, raised the issue of the five-day time limit. I think I have addressed that issue. He also raised the issue of legal aid in Scotland. He is absolutely right that legal aid is a devolved matter. It is therefore not for your Lordships' House to determine what happens in relation to legal aid in Scotland. My understanding of the position of the Scottish Executive is that it would like as much as possible to follow the approach that England takes to legal aid and asylum cases, although, obviously, to do so consistently with the provisions of all their relevant legislation.
The noble and learned Lord, Lord Mackay, referred also to written submissions, reasons for remission, filter mechanisms and the authoritative decision of the tribunal. I think that I have dealt with each of those points. He made an additional point in noting that the amendments provide for only one remission. That is absolutely right. We believe that a balance has to be struck between ensuring that there is proper jurisdiction while not allowing an endless series of loops round and round the system.
§ Lord Mackay of Clashfern
I believe the amendment says that one application, not one remission, is allowed. However, the point is really the same. I can see the force of that, hut the situation could change on a rehearing. I just wonder whether that is completely fair and whether it might not be wise at least to consider that.
§ Lord Falconer of Thoroton
I will certainly consider it. However, I am sure that the noble and learned Lord can see the balance that we are seeking to strike by allowing only one application. He is right; I stand entirely corrected in that respect.
In answer to the noble Baroness, Lady Carnegy of Lour, our intention is not to say that a different time limit would apply in different parts of the United Kingdom. We recognise, however, that there is a very strong possibility that there could be certain categories of case where a different time limit might apply. The category we have in mind consists of cases where the applicants are detained, legal advice is effectively available to them round the clock and special fast-track procedures have been applied. The answer to the basic point is that we would not envisage different times for different parts of the country.
1023 I am grateful to the noble Lord, Lord Kingsland, for his welcome for the proposals. I have dealt with his points on errors of law and transition. I hope that I have made it clear that I do not agree that every tribunal hearing should be conducted by three people. I do not believe that that provides the right degree of flexibility or is the right approach to the tribunal. I do not accept the implication that it would be good to have laymen sitting on the tribunal. I think that our proposal will make for a fair but expeditious arrangement.
§ Lord Kingsland
I am astonished to hear the noble and learned Lord the Lord Chancellor say that. The biggest single criticism of the way in which the system works at the moment is the unevenness of the adjudicator decision. If one has a single lawyer sitting at the tribunal level, all one is doing is replicating the adjudicator system.
The fundamental issue in most of these cases is that of credibility, which is an issue of fact; in my submission, the noble and learned Lords needs at least two people in order to make the system secure. There is no appeal from the decision of this tribunal excepting on the basis of an error of law. The issue of credibility is not covered by that. I am astonished at the noble and learned Lord the Lord Chancellor's reaction, and dismayed that he intends to continue with the adjudicator system in the disguise of a tribunal.
§ Lord Falconer of Thoroton
I have complete confidence that judges sitting alone, which will include those in the single tier, are well able to form judgments on facts.
I think that that deals with every point that has been raised. I therefore commend Amendment No. 46A to the Committee.
§ On Question, amendment agreed to.
§ [Amendment No. 47 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 47A:
Page 16, line 19, at end insert—
(9) The Lord Chancellor may by order vary a period specified in—
(10) An order under subsection (9)—
(11) Before making an order under subsection (9) the Lord Chancellor shall consult—
§ On Question, amendment agreed to.
§ Clause 14, as amended, agreed to.
§ [Amendments Nos. 48 and 49 not moved.]
§ Schedule 1 [New Schedule 4 to the Nationality, Immigration and Asylum Act 2002]:
§ [Amendment No. 50 not moved.]
§ Schedule 1 agreed to.
§ Schedule 2 [Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision]:
Lord Falconer of Thoroton moved Amendment No. 50A:
Page 34, leave out lines 6 to 12.
§ On Question, amendment agreed to.
§ [Amendment No. 51 not moved.]
Lord Falconer of Thoroton moved Amendments Nos. 52 to 59:
Page 35, leave out line 42 and insert—
(b) for subsections (3) to (5) substitute—
(3) The following provisions of the Nationality, Immigration and Asylum Act 2002 (c. 41) shall apply in relation to an appeal under this section as they apply in relation to an appeal under section 82 or 83 of that Act—
(c) omit subsections (6) and (7).
Page 38, leave out lines 23 and 24 and insert "—
Page 38, line 27, leave out "105A"." and insert "103A".
Page 38, line 31, leave out "a review under section 105A has been requested and not completed."," and insert "—
Page 39, leave out lines 30 to 41 and insert—
Page 39, line 48, leave out "or a request for a review
Page 40, leave out lines 7 to 11 and insert "require the Tribunal to treat a specified decision of the Tribunal as authoritative in respect of a particular matter.
Page 41, line 14, at end insert—
30 (1) This paragraph shall have effect in relation to applications under section 103A(1) or for permission under section 103A(4)(b) made'—
(2) An application in relation to which this paragraph has effect shall be considered by a member of the Asylum and Immigration Tribunal (in accordance with arrangements under paragraph 8(1) of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 (c.41) (inserted by Schedule 1 above)).
(3) For the purposes of sub-paragraph (2)—
(4) Where a member of the Tribunal considers an application under section 103A(1) or 103A(4)(b) by virtue of this paragraph'—
(5) Where notice is given under sub-paragraph (4)(b)—
(6) Rules of court may specify days to be disregarded in applying sub-paragraph (5)(b).
(7) A member of the Tribunal considering an application under section 103A(1) by virtue of this paragraph may not make a reference under section 103C.
(8) An order under sub-paragraph (1)(a) or (b)—
§ On Question, amendments agreed to.
§ Schedule 2, as amended, agreed to.
§ House resumed: Bill reported with amendments.