Clause 11 — Unification of appeal system
Asylum and Immigration (Treatment of Claimants, Etc.) Bill
Mr Richard Bacon (South Norfolk, Conservative)
It is a pleasure to follow Ms Abbott in the debate. She referred to the fact that not a single Labour Member of Parliament had spoken in support of clause 11. I think that I am right in saying that not a single Member of Parliament has spoken in support of the clause. The Minister may find himself in the curious position of being the only Member of Parliament to speak in favour of clause 11 on Report, which speaks eloquently of its worth.
The reason hon. Members do not support clause 11 is very simple: it is a bedrock of our system that we do not have unreviewable, uncheckable powers. Mr. Marshall-Andrews put that exceptionally succinctly and clearly in his speech. The lack of such power is the basis on which the Anglo-Saxon legal and political tradition is built, and the Government need to understand that.
I should like to raise a couple of issues with the Minister, the first of which relates to the Human Rights Act 1998, which has been alluded to. I should like him to make it very clear in replying to the debate whether the Government assert that the Bill is now compatible with that Act. My original copy of the Bill clearly stated that the Home Secretary
"has made the following statement under section 19(1)(a) of the Human Rights Act 1998:
In my view the provisions of the Asylum and Immigration (Treatment of Claimants, etc.) Bill are compatible with the Convention rights."
If we pick a clean copy of the Bill off the Table now, it says no such thing; mysteriously, that certificate is no longer there. The Minister could do the House a service if he clarified that point. Following the Bill's consideration in Committee, do the Government say that the Human Rights Act no longer applies? If they think that it applies, why is it not stated on the face of the Bill? If they think that it does not apply, will they please say so and attempt to justify that?
The second point that I want to make relates to the interesting, not to say amazing, letter that we received from the Minister for Citizenship and Immigration. In relation to clause 11, it says that section 108A is intended
"to prevent a person using judicial review to re-open an appeal by challenging removal or deportation following an unsuccessful appeal. However—
as drafted paragraph . . . could be interpreted as affecting an individual's right to challenge the lawfulness of their detention and the right to compensation following their unlawful detention as a result of action by IND or the Tribunal. This would place the UK in breach of . . . article 5 of the European Convention of Human Rights . . . The Government's position has always been that the measures being introduced by section 108A will not exclude judicial review".
Hence the new Government amendment. It continues by saying that the amendments
"will ensure that the restriction on access to the higher courts cannot be interpreted as extending to challenges to actions of IND, or actions of the Tribunal in breach of article 5"—
which will therefore—
"place beyond doubt that the provisions contained in section 108A do not prevent a person from challenging an executive decision in the higher courts."
If all that is clear, one wonders what all the fuss was about. But unfortunately, when one reads the Bill and examines the powers of the president, all remains unclear. Subsection (4) of proposed new section 108B states:
"The President may refer a point of law only if the proceedings in the course of which the point arises . . . have not been determined by the Tribunal".
Of course, it is entirely possible for someone who is affected by a decision to say during a tribunal hearing that the case before the tribunal was affected by a lack of jurisdiction or an irregularity, or by an error of law or a breach of natural justice. According to clause 11 as drafted, however, if the president of the tribunal says, "Well, actually, the case is not affected by lack of jurisdiction, irregularity, error of law or a breach of natural justice", he is then barred from referring the case to a higher court, unless—apropos the provision referred to by my hon. and learned Friend Mr. Garnier—the tribunal decides that it will review the decision on appeal, which it can do if it is satisfied that the decision would have been different but for a clear error of law. The president could be confronted with the possibility that there was a clear error of law and say, "No, there wasn't". But the Bill states elsewhere that he is barred from making a referral, so the two different parts of the Bill are contradictory.
The third issue that I want to raise has already been referred to, so I shall not dwell on it. Fundamentally, the problem is not a legal one but an administrative one, which is why I support amendment No. 93 and new clause 8, the purposes of which are to speed up administration of the appeals system. The answer to the problem is not to drive a coach and horses through the whole legal apparatus, or to undermine the bedrock on which our liberties have stood—which is that we do not have unreviewable or uncheckable power—but to speed up the administrative processes.
As Tony Wright said—he is no longer in his place—the House of Lords will not look kindly on the Bill; and, as Ms Abbott said, the fact that not a single Member has so far spoken in favour of clause 11 will give the Lords courage in resisting it and seeking to amend it. Although the hon. Member for Cannock Chase was right to say that the other place will not look kindly on clause 11 and probably seek heavily to review it, the judges themselves will not look kindly on it either. The history of the Executive's attempts to impose ouster clauses in this way suggests that if the judges see that an injustice will be done in a particular case unless they intervene, they will find a way to do so.
Ultimately, the Government will succeed simply in undermining the rationality and logic of the rule of law, because they will force the judiciary to become ever more creative and imaginative in finding a way round it. That cannot be in anybody's interests. In fact, the Law Commission has an obligation to simplify and clarify the law, which is what we should all seek to do, so that everyone can understand it. The solution to this problem is an administrative one. The Government should not seek to solve it by declaring war on the judiciary.