Clause 11 — Unification of appeal system

Asylum and Immigration (Treatment of Claimants, Etc.) Bill – in the House of Commons at 6:04 pm on 1st March 2004.

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following:

Amendment No. 93, in page 11, line 25, at end insert—

'(5A) A party to the Tribunal's decision may apply within 7 days to the High Court or, in Scotland, to the Court of Session for review of the Tribunal's decision on the ground that the Tribunal made an error of law.

(5B) Where an application is made under this subsection—

(a) it shall be determined by a single judge by reference only to written submissions, unless the court on receiving such submissions is of the opinion that there are exceptional reasons for an oral hearing;

(b) the judge may affirm or reverse the Tribunal's decision, or remit for rehearing to the Tribunal;

(c) if, in any application to the High Court, the judge thinks that the application had no merit he shall issue a certificate under this paragraph.

(5C) Where the High Court or in Scotland the Court of Session affirms or reverses a review under this section a party to the review may bring an appeal as a point of law within 7 days—

(a) where the original decision was that of a judge of the Court of Session in Scotland to the Inner House of that Court; or

(b) in any other case, to the Court of Appeal.

(5D) An appeal under subsection (5C) may be brought only with the permission of—

(a) the court that made it, or

(b) the court referred to in subsection (5C)(a) or (b) if the High Court or Court of Session in Scotland refuses permission.

(5E) An application made under subsection (5D)(b) must be made within 7 days of the refusal of permission to appeal by the High Court or Court of Appeal.'

Amendment No. 92, in page 11, line 26, leave out subsection (6).

Amendment No. 31, in page 12, line 10, leave out subsection (7).

Amendment No. 32, in page 12, line 11, leave out from beginning to end of line 17 on page 13.

Amendment No. 94, in page 12, line 11, leave out 'Tribunal's' and insert 'statutory'.

Amendment No. 95, in page 12, line 12, leave out '(whether statutory or inherent)'.

Amendment No. 96, in page 12, line 13, at end insert

'additional to the statutory jurisdiction exercised by the court'.

Government amendments Nos. 78 to 80.

Amendment No. 97, in page 12, line 35, at end insert

'provided that the immigration decision makes it clear at the time that deportation is capable of being a consequence of the decision'.

Government amendment No. 81.

Amendment No. 98, in page 26, line 19 [Schedule 1], at end insert—

'(e) is a lay member'.

Amendment No. 22, in page 33, line 28 [Schedule 2], leave out 'supervising' and insert 'organising training for'.

New clause 8—Initial decisions—

'(1) Initial decisions by the Secretary of State on asylum applications shall be made and notified to the applicant within six weeks of the application being made.

(2) Notice of appeal from the decision of the Secretary of State to the Asylum and Immigration Tribunal ("the Tribunal")—

(a) must be made in writing;

(b) must be lodged with the Tribunal within 14 days of the decision appealed against, and

(c) must list all the grounds on which the appeal is made.

(3) Within 14 days of receipt of the notice of appeal the Tribunal shall hold a direction hearing at which all parties to the appeal shall be present.'.

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

It is important to remove clause 11, because in it the Government propose to take away the ability to refer a tribunal's decision to a higher court. We argued about the principle for a long time in Committee. Whatever people's views may be on the Government's intentions about streamlining the tribunal system—there may be some merit in considering how the different elements could be brought together—there is widespread concern about removing the right of appeal to a higher court. We also have concerns about the proposal to give unprecedented powers to the president of the tribunal.

We will strongly defend the principle of having a tolerant society in relation to asylum and immigration, but the Bill goes even beyond that, attacking some important principles for justice as a whole. It upsets the constitutional checks and balances that we have had in this country for many years. By removing the right to go to a higher court, we could create numerous miscarriages of justice.

There is a miscomprehension about why the Government are seeking to do this. There is an assumption that any individual who wants to take a case to a higher court must be trying to abuse the system. There is very little acknowledgement from the Government that there may be genuine cases and genuine reasons why individuals would want and need to have their cases taken further. It is not all about allowing abuse or delaying tactics.

Since the Bill left Committee, we have had the report from the Constitutional Affairs Committee, which contains some powerful arguments for retaining the ability to refer to a higher court. The most compelling was in the conclusions, where it says:

"An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial insight of lower Tribunals and executive decisions should be retained. This is particularly true when life and liberty may be at stake."

That is an extremely powerful quotation from a respected Committee, not only tackling the principle but pointing out that the Government are choosing to break it on such a critical issue as an individual's ability to stay here and not be returned to a life-threatening situation.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

Could not the clause provide a precedent for exempting all sorts of Executive and administrative tribunals from understanding, applying or being governed by the law?

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

The hon. Lady is absolutely right: this could be the thin end of the wedge. There are a couple of circumstances in which we do not have the ability to refer to a higher court, but those are very limited and are concerned with security and terrorism. This would be the first incidence of such arrangements applying outside such circumstances, and it would be a serious erosion of the principle. I hope that the House, when it divides later, will stake out its principles on the issue.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

Is the hon. Gentleman aware of any respected lawyer or lawyers' group supporting the Government's position on this ouster clause?

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

They have certainly not been in contact with me, but it will be interesting to hear from the Constitutional Affairs Minister whether he has been able to find someone to defend the Government's position. Very few organisations, within Parliament or without, are in support. I have already quoted the Constitutional Affairs Committee, and we have similar evidence from other cross-party groups that have come together to condemn the proposal.

If the principle were not enough—and I argue that it should be—there are more practical reasons why we need to retain the current system. The Minister will be aware that we had endless debates in Committee, with pie charts and graphs, about the number of mistakes currently being made. There is no point in rehearsing those again, because we come from a different perspective, but it is my judgment that there are still a considerable number of mistakes, and a considerable number of cases being overturned in the higher court. While that continues, there is a practical as well as a principled argument for maintaining a form of appeal to a higher court.

Until the Government can demonstrate that they have such a secure system that no cases are overturned at a later stage, it will be a very grave move to remove the ability to have that further appeal. For cases involving certain countries, the number that are overturned is considerably higher than the norm: 35 per cent. of cases involving Somalia or Zimbabwe are changed or reviewed at a later stage. If the Government are to remove such judicial review, they will need to demonstrate that they have introduced a better system whereby such mistakes are not made. I am not convinced by what we have seen of their proposals that they have achieved that, but even if I were to be convinced, surely the logic would be to let the changes bed down and review them in a couple of years' time before removing the ultimate ability to challenge decisions in a higher court.

Photo of Patrick Hall Patrick Hall Labour, Bedford

Even if the quality of the first decisions became perfect—such a system does not exist—one would still require the ability to review those decisions, because human beings make mistakes. We will always have a need to do that.

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

I agree. In a sense, the hon. Gentleman makes a stronger argument that I do. Having established the principle, I was trying to move on to a practical argument on the numbers game, but frankly, in dealing with issues of principle and justice we should not get into the numbers game, because even one or two cases of injustice would be unacceptable.

I want to draw the Minister's attention to what Mr. Justice Collins said in the recent case of R (Konan).

The judgment was made on 21 January, and it is worth noting what Mr. Justice Collins—a judge at the front line who made a judgment on the very issues in question—said in that case:

"It is a cautionary tale since it shows that decisions of the defendant's officials and the appellate authorities can be wrong and that there is a need for a judicial assessment . . . If the possibility of judicial review had not existed the claimants would wrongly have been returned to the Ivory Coast."

That practical example took place three or four weeks ago. The judge's ability to decide to refer the case to a higher court resulted in people not being sent back to a country where they would not have been safe, and many such practical examples exist.

I offer a third argument to the Under-Secretary for why we need to keep the existing process in place. If the principle underlining the current arrangements and the practical day-to-day cases are not sufficient reasons for having judicial review, surely another compelling argument in its favour is that it has been proven to be a useful tool for testing law and making it better. I should have thought that, occasionally, the Government would welcome that opportunity because some asylum and immigration issues, and some interpretations of the international conventions, are complex. The conventions have been described as "living instruments"—they are constantly tested and amended. It is a long-established principle that everyone in the system should be able to refer such convention changes to a higher court for clarification and guidance. For the sake of the clarity of such conventions, there is a compelling argument for retaining the ability to refer to a higher court.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway 6:30 pm, 1st March 2004

Before the hon. Gentleman leaves the numbers game, is it not the case that in 2002, the divisional court threw back 260 cases as having been wrongly decided under the high test that had to be applied? If the Bill had been enacted at that time, all those people would have gone back to possible persecution, or even death.

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

The hon. and learned Gentleman uses those numbers to make a powerful argument, but even if only one rather than 200 people were affected, the principle of referral would be worth defending not only for the individuals concerned, but because it could be a useful tool to allow the Government and agencies to test and develop new law.

The Government have suggested merging the various stages of the system into a tribunal. I shall especially focus on the power of the president because those of us who believe in the ability to test such matters would want an individual who could help us to access advice from a higher court. However, the Government's proposals restrict the power of the president, or rather give him so much power that he does not have to be bound by any higher court to which he may or may not choose to refer cases. At the moment, the Bill gives the president incredible power to decide whether to refer a case up. The fact that he or she will not be bound by a court's decision is unacceptable.

In Committee, the Under-Secretary said that he thought that it would be very unlikely that the president would seek advice yet ignore it. As a general principle of good practice, I would prefer a measure to provide for that to be in the Bill, rather than relying on an intervention in Committee. Surely we should make good law in this country under that principle. However, an additional problem is that there might well be cases in which the president would be reluctant to refer a case to a higher court. One can imagine that league tables might be produced, so the president could think that referring cases on would be seen as a criticism of tribunal staff. The measure represents an unsatisfactory means of providing the ability to refer cases to a higher court for rulings. Paragraph 54 of the report published a couple of days ago by the Constitutional Affairs Committee says:

"We see no reason why the President of the Asylum and Immigration Tribunal should have the sole right to decide whether an appeal lies to a higher court or why the Court of Appeal should not be trusted with the discretion to take over particular cases if it saw fit."

The Committee expressed concerns about the way in which the president will operate, so if the Under-Secretary were to look again at the powers of the president, it might go some way toward reassuring Liberal Democrats.

Finally, I should like to refer to the way in which tribunals will operate and their ability to review their work, irrespective of the president. The internal review systems suggested by the Government seem to be weak. In the majority of cases, it will only be possible to accept written evidence for the purposes of review, and oral hearings may be held only in exceptional cases. If the Government wish to go down such a route, they could reassure us by strengthening a tribunal's ability to review a case. Clear arguments proving why an oral hearing may be necessary in some circumstances should be set out in the Bill. The Government again seem to want to restrain the ability to test and review decisions.

Surely the way forward would be to introduce a system that does not require a lengthy process and does not, in the first place, lead to the current number of wrong decisions. Liberal Democrats support the Government's intention of speeding up the system, but we disagree with the route that they are taking. We want better quality decisions to be taken in the first place, which requires better information on each relevant country, improved decisions and better training of individuals. The Government should consider putting in place a package of measures to try to speed up the system and produce better decisions before introducing more draconian measures that change the judicial process.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

In reminding my hon. Friend that all the provisions will affect not only asylum applicants, but immigration applicants, will he note that the Constitutional Affairs Committee recorded that the Government cause more delay to immigration applications than applicants?

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

My right hon. Friend makes a powerful argument for examining different systems before starting to mess with the principles of evidence. Select Committees and others have plenty of evidence that could give the Government ideas about ways to speed up and improve the system. As the Select Committee on Home Affairs said:

"The real flaws in the system appear to be at the stage of initial decision-making, not that of appeal."

It recommended that the appeals proposals should not be brought into force

"until the statistics show a clear reduction in the number of successful appeals at the first-tier, adjudication level."

Again, that is a strong argument for putting in place other measures before making changes such as those proposed by the Government.

Of course, the Government have already put in place measures to speed up the system, because they clearly want to avoid delays in cases going to a higher court, which we support. For example, they put in place a four-week system to determine whether they could speed up the process by making such a change. That has been in operation for about a year, which is a short time, but the evidence on that new system will not be evaluated or assessed because it might not be needed if their new proposals bed down effectively.

The Government's intention of speeding up the process is worthy, and we would support a speeded up and fair process, but they seem to be prepared to break with long-standing principles that go way beyond immigration and asylum to achieve that. Will the Under-Secretary reflect that rather than trying to get a few quick headlines in the Daily Express and the tabloid papers, it would be better to reject the option of making the proposed changes and to put in place practical measures for the next year to find out whether they could achieve some of the Government's aims? Surely that approach would be more mature, sensible and in proportion with what the Government regard as a problem than making such fundamental changes that could have wider implications beyond immigration and asylum.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

I shall be brief because I appreciate that several hon. Members wish to speak. In all the dreary and depressing history of this Administration's assaults on fundamental civil liberties, this measure is the worst by a streak. It is literally incredible that we should come to the House to contemplate removing all the protection of the law from a vulnerable minority who face the possibility of persecution, torture and death.

The measure would never get through this House, let alone the other place, if it affected British people. The only reason why it is being advanced by the Government—otherwise, the Government themselves would not survive—is that it applies to foreigners.

In putting this proposal forward, not only are the Government guilty of an iniquity in the House, but they have turned their back full-square on the long theology of the Labour movement, which has always maintained that justice is not an individual right given to individual people, but a universal—that it applies to us all, and is our greatest collective asset. A diminution of others' rights is a diminution of our rights; what diminishes them diminishes me, and diminishes all of us in this place.

That is why I could never, never vote for anything that even resembled clause 11. I hope and trust that there will be many who will vote against the Bill in the Lobby. I do not suggest for a moment that we will succeed, but when we vote in that way, we will be passing a message to the House of Lords that those who vote according to their conscience in the House of Commons are universal in their determination to defeat that part of this legislation.

We all accept that this is not a numbers game, but a matter of the highest possible principle—but while we are talking numbers, I should point out that in 2002, even given the enormous difficulty of obtaining judicial review and a successful application before the divisional court, the divisional court threw back 260 cases—cases in which decisions had been made that should never have been taken by any reasonable tribunal. Under the regime that will exist if this Bill becomes law in its present form, the people behind those 260 cases, and all their families, would have been sent back to face persecution, torture or death.

That is the enormity of what we are being asked to pass. It is my abiding faith in the Houses of Parliament that leads me to believe that at the end of the day, the measure will not pass—that ultimately, it will not pass through this House, and will not pass through the House of Lords either. If we do pass it into law, it will be an object of shame both for this House and for this Government, which they will never, in history, survive.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Mr. Marshall-Andrews said that it was a principle underpinning the Labour party and the Labour movement that people in this country should not be treated differently according to whether they are citizens or not. That is a principle to which I too, as a Conservative, have no difficulty in adhering. That all in this country should be subject to the rule of law, and have the protection of the law, is a fundamental right, and fundamentally underpins the ethos and the ethics on which this country was built and developed.

In clause 11 the Government propose to do something unprecedented. Not even in the darkest days of the second world war, when aliens were being interned, and were subject to administrative procedures to bring that about, was the supervision of the higher courts removed from the process to prevent wrongs from being righted if necessary, and rights from being preserved. Yet that is what the Government propose to do.

The only justification being suggested is that the administrative procedures that the Government seek to substitute will provide adequate protection. I accept that the Government face a problem with the appeals system. It is obvious that it needs to be streamlined to make it more efficient. I also accept that the system has been abused by a minority of unscrupulous lawyers, who take the view that by spinning out the proceedings in undeserving cases they can delay the inevitable, and even that the inevitable may therefore not happen, because the Government will lose the will to implement the decision and deport the person whose asylum application has failed.

However, we must not lose sight of the fact that many of the delays in the asylum system have nothing to do with the courts, but stem from the Government's administrative failure to cope with the numbers of asylum seekers. We know that 20 per cent. of decisions made by the Home Office executive officers are not made within the two-month period prescribed. Is that surprising, when we consider their lowly status, the fact that they start on a salary of £15,000 per annum, and that they are regarded as wholly qualified to do their work after 27 days? It may not be surprising, either, in those circumstances, to note that many of their decisions turn out to be wrong.

The Minister may care to comment on this, but I understand that the Home Office presenting officers attend only about 60 per cent. of adjudication hearings. Is it surprising, therefore, that the adjudicators often overturn decisions? As Mr. Oaten rightly said, the system leading up to the tribunal stage is not only slow, but is entirely in the hands of the Government who run it. There is no point in the Government complaining about the system; it is their system.

In my view, underlying the Government's proposal are complaints about the attitudes of the judiciary. The truth is that the Government do not like the judiciary. They do not like its independence or its attitudes. When Lord Falconer was appointed Secretary of State for Constitutional Affairs, why did the Home Secretary say to him, in an aside that was perfectly visible on television, "Now at last we will get the judges we want"? That is the reality of the Home Secretary's hostility to the judiciary and to the independence of its decision making.

Furthermore, there is not much point in the Government complaining about the judiciary's decisions in asylum cases, when most of those decisions have been founded on the Human Rights Act 1998, which the Government themselves chose to incorporate in our law.

In 1999, exceptional leave to remain was granted in only 2,465 cases; in 2002, there were 20,135 such cases. That was because the introduction of the Human Rights Act brought a whole new range of considerations to the way in which asylum cases had to be considered, leading to a completely different set of results. I do not imagine that the Minister wishes to criticise the judiciary for having been instrumental in helping that process along. If he does, I simply say to him that the Government should not have incorporated those rights in our law. It was his Government who chose to do that. There is no point in blaming the judges for interpreting the law, when Parliament asks them to do just that.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 6:45 pm, 1st March 2004

The Government have at last got round the inadequacy of their own legislation by cynically placing in this Bill subsection (5) of proposed new section 108A of the Nationality, Immigration and Asylum Act 2002, which disapplies the Human Rights Act from the decisions of the tribunal. Not only did they cynically introduce the Act to British law so that they could say, "We're bringing rights home," but when judges apply the legislation that they so joyously put on our statute book, they disapply it, for the very reasons that my hon. Friend has mentioned.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I entirely agree with my hon. and learned Friend—yet I understand that the Home Secretary has certified that he believes the Bill to be compatible with the Human Rights Act. The Government's approach is a complete mystery. Indeed, I have to say—and my hon. and learned Friend may well agree with me—that the provision will drive a cart and horses through the Government's attempts to make this ouster clause work. One of the things that I intended to say to the Minister was that I do not think that the ouster clause as drafted stands a hope in heaven of surviving judicial scrutiny. It will probably lead to a major confrontation between the judiciary and the Executive.

It will not lead to the streamlined procedure that the Government want.

I said that the Government do not want the judges to rule, yet the proposal is entirely a product of their Marxist past—[Interruption.] Yes, it is. The more I watch this Government and see that, having abandoned any hint of Marxism in economics, they long for centralised bureaucratic solutions to the problems that confront the country, the more convinced I become that they wake up in the middle of the night believing that those bureaucratic solutions can change the world for the better. I, however, do not believe that.

I have some suggestions that will allow the Government to solve their problem. We have tabled a series of amendments—amendments Nos. 93, 92, 94, 96, 22, and new clause 8. If they were accepted, they would provide a framework by which it would be possible for the Government to achieve their aim of streamlining the legislation while keeping it compatible with the Human Rights Act and, indeed, making it work properly.

Amendment No. 93 respects the idea that the tribunal and the adjudicator should be collapsed into one, to speed up the process. If that is what the Government want to do, so be it. Much will depend on the quality of the tribunal, to which I shall return in a moment. In addition, we would remove what is frankly the completely ludicrous notion that the tribunal can review its own decisions. It is sometimes possible to go back to a judge under the slip rule to ask him to review his judgment or order, but it is extraordinary that the Government consider it acceptable that the mechanism of appeal with which they are going to justify the Bill as Human Rights Act-compatible is to ask a tribunal that has just made a wrong decision to review it. That is nonsense. As soon as the Minister and the Government understand that, we can start to put the legislation into a sensible shape.

We propose establishing a statutory appeal procedure to a High Court judge. It would be streamlined, with seven days to appeal, which would be possible without causing injustice. The appeal would usually be dealt with on paper, but with the possibility of the judge calling the case in for oral hearing if necessary. The judge would either affirm or alter the decision, or remit it back to the tribunal if further hearings of fact were required. That sensible approach respects the fact that the higher judiciary should have an input into the process. It would also ensure that the appeal is not conducted by the same people who heard the original case.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

As my hon. Friend has not departed too far from the subject to human rights compatibility, will he invite the Minister to confirm whether the Government still assert that the Bill is human rights-compatible? The old version of the Bill clearly sets out on page 1 the certificate to which he referred. It says that Mr. Secretary Blunkett has asserted that the provisions

"are compatible with the Convention rights", but there is no such reference in the clean version of the Bill, at least not on the front page.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend makes a good point. If the Bill as printed, after its passage through Committee, is no longer Human Rights Act-compatible, the Minister should have told us that from the outset. I take it that in the absence of that statement, he still considers it compatible. My hon. Friend is right, however, that it no longer features in the Bill. I suppose, therefore, that the Government are proposing legislation that is not so compatible with the Human Rights Act. I will give way to the Minister if he wishes to say whether it is a printer's error or the Government's new view of the Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister does not want to intervene, so we are left with our quiet speculation.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

As the Minister is not prepared to respond, does my hon. Friend agree that if the Human Rights Act is important in a case, it is precisely a case in which a country deals with foreigners, because that is when many countries have double standards? It happens to be true in Britain that we have not had double standards. The Bill is the first time we have had those double standards, which came into being the very moment the Government ditched their Human Rights Act, which brought the convention on human rights into our law.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend is right. It is also right that we should call a spade a spade and consider people's views with care. Many people—perfectly reasonable people—would often apply different criteria to foreigners and nationals. It is precisely for that reason that the protection of the law is so important. It is because emotions often drive people in an opposite direction that a system of law is constructed to ensure that mischief does not result from it. That is what is so unpleasant about what the Government want to do. Ms Abbott was right: if the Government can do that for this measure, what next? The comment on the second world war—

"First they came for the Jews" and then for another group, and another—is correct. Those who are most unpopular in society need the greatest protection. I always thought that that underlay the Human Rights Act, however unpopular and uncomfortable some of the decisions might occasionally be. Perhaps the Minister will intervene if he disagrees, but in the meantime I give way to my hon. Friend Peter Bottomley.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

I am grateful to my hon. Friend and my hon. and learned Friend Mr. Garnier for their contributions, because subsection (5) of proposed new section 108A relates to anything that a tribunal may have done in which there is a

"lack of jurisdiction . . . irregularity . . . error of law . . . breach of natural justice, or . . . any other matter".

If this is the first time the Government are suspending the Human Rights Act, and if it is a convention of the House that the declaration of compatibility with that Act is not left in the Bill on Report, can we have a new convention that puts it back in any case in which the Government propose to lift the protection of the Human Rights Act, which we are told matters so much?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend makes a good point. Again, I wait to hear how the Minister intends to deal with that.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If I could make some progress—other hon. Members wish to participate.

On the other provisions in amendment No. 93, once the review has taken place in front of the single judge, there should be a mechanism to appeal on a point of law to the Court of Appeal. We have again tried to streamline that by introducing the period of seven days. The appeal has to be done with the leave of a single judge or the leave of the Court of Appeal. From there, it can go to the House of Lords in the ordinary way if there is a point of law of general public importance. How would that procedure hold things up?

I suspect that the mechanism of going to the single judge will be just as quick as asking the tribunal to review its own decision, by the time it has been weighed down with dozens of such applications. We know that the Court of Appeal heard only five asylum cases in the year from 1 October 2002 to 30 September 2003, and only four asylum cases were heard by the House of Lords. Admittedly, there were many more in the previous year, but that reflected the fact that the adjudicators and the tribunal were getting their decisions consistently wrong. I need the Minister to justify his proposal if he is to persuade me that allowing an appeal to the Court of Appeal and the House of Lords would put a spanner in the works, especially as we propose a streamlined procedure to facilitate the process.

On the Human Rights Act exclusions and the question of removal, I shall return to a point that I made earlier, which bears repeating: if the Government persist with clause 11, the judiciary will undoubtedly find every conceivable device to get round its provisions. Having examined it, I can think of a number of ways in which that might be done.

The Minister may care to reflect on the point that if the procedures are irregular and flawed, it might be argued that there are no procedures. If there are no procedures, an application for habeas corpus will be entertained by the courts when somebody is about to be taken away in a van and put on a plane, and the mud will be all over the Government's face. The Government are being unreasonable and should accept our offer of a helping hand rather than persisting with a ludicrous policy.

Amendment No. 22 deals with schedule 2, which is very worrying and is linked to clause 11. Schedule 2 provides for the supervision of judges by other members of the judiciary. I am not sure whether I understand what that means, but I have always understood that every judge is independent once they have been appointed. A judge may, of course, consult colleagues or discuss matters with them over dinner, but his decisions are ultimately independent.

Explaining that point in Committee, the Minister said:

"We propose that senior members of the judiciary will be responsible for supporting a group of approximately 10 immigration judges. The senior judiciary will play a role in communicating information and case law and will be available if the immigration judge wishes to discuss any issue. They will play a role in ensuring that the judges receive appropriate training and mentoring, should they need it. That is consistent with judicial independence and is essential to allow asylum and immigration tribunals to function effectively."—[Official Report, Standing Committee B, 20 January 2004; c. 317.]

New Labour justice involves a judiciary that is no longer independent and that is so orchestrated from the president downwards that it achieves the ends that the Government want. The Minister should be ashamed of introducing such a proposal.

It would be sensible to accept amendment No. 22, which would resolve the problem by changing the wording and removing the mischief. I do not mind if judges want to consult each other, but I object to the setting up of a parallel legal system based on new principles designed to achieve an administrative end. Before 1997, people said that the Prime Minister thought that Britain was too feudal and that he wanted to make it Napoleonic, but we are getting Napoleonic with knobs on—an administrative system that is alien to this country, which does not refer to our historic freedoms and which completely undermines judicial independence.

Finally, I commend new clause 8 to the House; the Government should adopt it if they want to speed up the system. If the Government succeed in mastering the asylum system—there are some signs that they have made recent improvements—new clause 8 sets out a timetable for the Secretary of State. It states:

"Initial decisions . . . shall be made and notified to the applicant within six weeks of the application being made. Notice of appeal . . . must be lodged with the Tribunal within 14 days of the decision appealed against . . . Within 14 days of receipt of the notice of appeal the Tribunal shall hold a direction hearing".

Those are simple ways further to streamline the process.

Justice delayed is justice denied—the saying is old and, perhaps, trite, but it is true. If the Minister wants the official Opposition's help in speeding up justice, we will do what we can to help him and to cure abuses. If, however, the Government seek to undermine the principle of an independent judiciary, which is what clause 11 does, he should not be surprised when we resist him.

Photo of Tony Wright Tony Wright Labour, Cannock Chase 7:00 pm, 1st March 2004

I shall be brief and have one point only to make. I have supported almost everything that the Government have tried to do to sort out the asylum system—it needed sorting out, and they have rightly set about the task with some vigour. I am also happy to join in the occasional jibe against lawyers—the jibes are good fun and always contain a grain of substance. However, there comes a point at which all of us who are not lawyers but who care about how the system works must ask ourselves whether we are being asked to go a step too far.

I have examined what the Constitutional Affairs Committee told the House and what the Joint Committee on Human Rights told both Houses—their use of language is not restrained; it could hardly be more vigorous—in drawing our attention to the importance of the Government's proposal. We have always adopted the principle that higher courts review the actions of tribunals in this country. That keeps the tribunal system on course and enables us to run it, because we know that it can be disciplined by the purview of a higher court, which is a constituent of what we have become used to describing as "the rule of law".

When the Government ask us to dispense with the rule of law by collapsing the appellate system into a single appeal body and by removing the appeal system from the purview of the higher courts, we are entitled to ask, "Why are you doing that?" As it happens, I am not one of those who simply say, "If it can be shown to be a constitutional precedent, I shall be against it." I favour breaking with all kinds of constitutional precedents on all kinds of fronts—I can give the Government a little list, if they would like one. However, I am not prepared to sign up to the removal of an appeal layer unless overwhelming justification can be given.

Authoritative Committees of this House have explored the question whether the Government have an overwhelming case, and they have found that the Government do not have one. That places an onus on all Members of Parliament who broadly support the direction in which the Government want to travel to say, "Hang on a minute. Be sure that you are not asking the House to do something disproportionate. Be sure that the measure does not help to undermine the rule of law on this front, and potentially on a wider front too, just for Executive convenience." It is not always easy to tease out whether points of principle underpin the matters that we discuss because we have a habit of trying to make everything into a fundamental point of principle in order to sustain our case, but there are moments when such principles are clearly at stake, and clause 11 raises one such principle.

We know that the measure will never be accepted by the other place, and the Government have presumably factored that into their thinking. As I see it, there is no way that legislation this fundamental will be accepted by the other place, so the Bill will presumably return to this House in a form that the Government think that they can get through, which will involve its amendment. The appeal system that we end up with will presumably be more streamlined than the current system, but it will be something other than the Government's current proposal.

That may seem to many people to be a perfectly satisfactory outcome—indeed, that is how we do things.

From the point of view of the House, however, that is not an acceptable way to proceed. The Government should not ask the House to agree something that raises fundamental points of constitutional importance, on the assumption that what will eventually be agreed will be something other than the original proposal. That is profoundly damaging for the House and for the reputation of our system. If for no other reason, I ask the Government to think again about the clause.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

At the outset of their respective speeches, my hon. Friend Mr. Grieve and Mr. Marshall-Andrews both claimed political ownership of a fondness for the rule of law and respect for our system of justice, and they were right to do so. Both our parties have a long and proud tradition of respecting the rule of law. I paraphrase what they said, because I am trying to be as quick as I can. Respect for the rule of law is not a matter that belongs to either party. I hope we share it, irrespective of our party political allegiances, and I am reasonably sure that the hon. and learned Member for Medway would hold those views regardless of whether he happened to be a Labour Member of Parliament. I know for a fact that my hon. Friend does as well.

What Tony Wright said at the beginning of his remarks also struck me as true and right, when he referred to the report of the Constitutional Affairs Committee led by Mr. Beith. It is, in some senses, remarkable that we have to remark on what that report says. It points out things that to me and, I hope, to most civilised Members of the House, are unarguable and which ought to be wholly unremarkable and uncontroversial. Why do they need restating? Because we are dealing with a very strange Government indeed, who seem to have forgotten everything and learned nothing.

I shall do the Minister a favour by not referring to anything he said in Committee. The Government have crafted clause 11, which flies in the face of the accepted standards that the hon. and learned Member for Medway, my hon. Friend the Member for Beaconsfield, the right hon. Member for Berwick-upon-Tweed and the hon. Member for Cannock Chase take for granted. They are seeking to do what, for example, Lord Scarman in the case of the Crown v. Home Secretary ex parte Khawaja—a 1984 case in the House of Lords—remarked upon. He said:

"Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection."

He was not saying anything that was new. The great Lord Mansfield, in setting free the black slaves in the 18th century, recognised exactly the same. Judges in the 18th century, the late 20th century or today do not recognise the colour, creed, nationality or origins of the applicant for asylum before them—or, at least, they should not.

The Government cynically introduced into our domestic law the Human Rights Act 1998, which brings the European convention on human rights into our law, and now they are prepared to strip it out completely. I shall analyse clause 11 briefly, as it demonstrates the eminent good sense of amendment No. 93 and new clause 8 which were moved by my hon. Friend the Member for Beaconsfield. I do not need to repeat what he said. I ask the House to consider amendment No. 93 and new clause 8, whereby controls can be placed upon bad appeals, worthless appeals and time-wasting appeals by means of a requirement for permission and for speed, while none the less maintaining an attachment to justice and the rule of law.

We should bear in mind the content of clause 11. First, there is a requirement that the tribunal

"shall review its decision on an appeal if requested to do so by a party to the appeal."

That is presented as though it were a tremendous bonus to the people of this country that if the court is requested to review its own decision on an appeal, it will consider whether to do so. If that is a bonus, the benefits are soon removed when one turns to the following page, page 12, which states:

"On a review by the Tribunal of its decision on an appeal the Tribunal"— reviewing itself, of course—

"may act under subsection (6)(b) only if satisfied that the decision would have been different but for a clear error of law by the Tribunal."

So if the tribunal is not persuaded that it has made a mistake, it will not enter into any sort of review.

Matters get worse. The Bill states:

"No court shall have any supervisory or other jurisdiction (whether statutory or inherent) in relation to the Tribunal" and

"No court may entertain proceedings for questioning" a host of things that higher courts exist to question and to impeach if necessary. A court is specifically prevented by the Bill

"from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of—

(i) lack of jurisdiction,

(ii) irregularity,

(iii) error of law,

(iv) breach of natural justice, or

(v) any other matter".

This is a Bill that was drafted by the close advisers of some African despot, not by a British Government interested in the rule of law. It is an absurd, disproportionate and wrong piece of legislation, yet we have to debate these clauses because the Government think it right and proper to do such things. The Government are like a group of small boys ripping up a beautiful butterfly—our constitution—pulling off its wings to see how long it takes before the beast is dead. As a Member of Parliament, I am appalled to find that I must even consider legislation containing clause 11.

Photo of David Winnick David Winnick Labour, Walsall North 7:15 pm, 1st March 2004

There is merit in what the hon. and learned Gentleman says and I do not disagree with many of his arguments, but as a Conservative Member, does he not accept responsibility for the fact that asylum seekers have been demonised, not least by his party at constituency level and sometimes in the House of Commons? If the Government are acting in a way about which I have many reservations—I shall have to decide how to vote, or whether to vote at all, on this group of amendments—it is because they are responding to the manner in which asylum seekers are demonised by the media and the Conservative party, and to the constant pressure on them as a result.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am not sure that the hon. Gentleman's point was helpful to him or his Government, but others will be able to consider it as and when they wish to.

I shall explain briefly why I think that clause 11 is so strange and so absurd. Having learned that no court may look at matters that affect jurisdiction, or at matters that were decided irregularly, or were in breach of the law, or in breach of natural justice or any other matter—whatever that may be—we are told that the court may consider

"whether a member of the Tribunal has acted in bad faith," in reliance on an earlier subsection, but

"only if satisfied that significant evidence has been adduced of

(a) dishonesty,

(b) corruption, or

(c) bias."

It is all right if the tribunal was slightly dishonest or slightly corrupt or slightly biased, or perhaps not at all dishonest but completely corrupt, and just a teensy-weensy bit biased.

If that is the position, the tribunal can, if it thinks fit, look at itself again. I wonder whether the Government will find a judge who will think it proper to allow himself to be appointed president of the tribunal.

We have seen the remarks of Messrs. Justices Collins and Ouseley, the two most recent presidents of the Immigration Appeal Tribunal. In their judicial pronouncements, they have underscored the value of the appellate system that they have headed up. They are not making political points, but simply giving judgment on cases that have come before them from the lower tiers. Such people will not be available to sit on the tribunal, because most judges, I suspect, will find it a thoroughly objectionable and unprincipled tribunal to be in charge of.

The Government have told us that they have to abolish the office of Lord Chancellor because it is offensive to the doctrine of the separation of powers. We are also told in the Bill that abolishes that office that the way in which judges will be appointed in future will underscore the separation of the Executive and the judiciary, whom it will free from the influence of political appointment. Nobody, of course, has ever suggested that our judges are appointed on anything other than merit, but none the less the Government think that that is appropriate. However, under this Bill, we will have a system under which the appointment of judges and members of the tribunal is subject to the influence of the Secretary of State for Constitutional Affairs, and citizens of our country can deal with asylum seekers in such a way that their human rights are expressly denied.

I shall conclude with an illustrative example, as I appreciate that many other hon. Members wish to speak. The Government want to do away with the appeal process in the immigration and asylum system on the ground that it is offensive to the Treasury and some sub-editors and editors of some of our national newspapers. They also want to attract votes away from the British National party. However, not once but twice and now a third time they have required an asylum-seeking constituent of mine, Captain Rogelio Viteri, the former Ecuadorian naval attaché who, along with his wife, has been threatened with death, to attend a hearing. Both of them have been subjected to terrible personal anguish, both in this country and in Quito, where he was imprisoned without trial or access to due process. He was eventually told that he could stay in his home country and die or go away and live. I am happy to say that he chose to live in this country, and to apply for asylum here. He was granted it at the first tier. The Home Office, not content with that decision, appealed. At the appeal hearing, the Home Office did not submit evidence nor did it cross-examine my constituent's witnesses. It sat on its hands and lost the appeal, only to appeal that result. The next hearing is on 18 March. The Government are cynically removing the appeal rights of asylums seekers in the Bill, but they are prepared to exploit the appeals system at vast public expense and without any idea of what justice is or means, let alone what the cost is to the Exchequer.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

I seem to recall that the hon. and learned Gentleman alluded to his constituents' sorry tale in Committee. Is it not the case that Ecuador is whitelisted?

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Ecuador is an interesting place, but I shall not go into the evidence that was adduced in the two previous hearings and will no doubt be adduced again.

In short, the Government have double standards. They claim to be the patron of human rights, yet are prepared to abuse future asylum seekers' human rights under clause 11. They have demonstrated their lack of good faith, I submit, in their handling of the Viteri asylum application. I have said enough to make the points that I wish to make, and have burdened the House with my remarks for too long. I trust that hon. Members who have listened to others apart from me realise that the Government have some good intentions, but in relation to clause 11 they have completely and utterly lost all connection with humanity and justice.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

I am glad to be able to speak in support of proper appeal rights for asylum seekers and of the amendment to delete clause 11.

Two important parliamentary Committees examined the proposals on the appeal system and reached conclusions that are not favourable to the Government. Opposition to clause 11 rests on issues of principle and of practice. In the first instance, there is a clear objection in principle to any tribunal exercising a supervisory jurisdiction over itself, yet that is the set-up for which the Government are asking us to vote tonight. As colleagues have said, the Government can get away with that only because asylum seekers are involved. If clause 11 is passed unchallenged tonight, we will set a precedent that, for administrative convenience, could be applied to various Executive and administrative tribunals seeking to do away with a proper system of appeal.

Underlying clause 11 is the Government's concern about delay in dealing with asylum seekers and a range of immigration cases. I have great sympathy with their impatience. I have been a Member of Parliament for 17 years in a corner of north-east London that is home to asylum seekers and economic migrants from all parts of the globe and have dealt with thousands of cases. Some things change—every time there is a war or disturbance in a far corner of the globe there is a change in the pattern of asylum seekers and economic migrants who present themselves in Hackney. Ten years ago, we saw people displaced from the former Yugoslavia, but since then we have seen Kurds and people from the horn of Africa.

Demographic trends change, but other things remain the same. During my time as a Member of Parliament the administration system has been consistently poor, and delays have continued. The Government are right to focus on delay, but they are wrong to identify appeal rights as the most important cause of delay. If the Government introduced a programme of legal and administrative change to deal with delay at all levels, I would be the first to support them. Week after week in my advice sessions, I try to advise and help people who have waited years for a response from the Home Office. People who have had hearings in their favour are still waiting months to get the paperwork that will allow them to work and get on with their lives. Nobody feels more strongly about delays in dealing with asylum and immigration cases than the MPs who have to deal with those cases day in, day out.

If the Government are concerned about delay, before they tamper with appeal rights they should look at the causes of delay, the solution to which rests in their own hands.

I commend to the Government a recent report by Amnesty International on decision making in asylum cases that asked why some of the initial decisions were so poor. Amnesty considered 170 cases and came up with three main reasons, the first of which is the lack of accurate information on the human rights situations in some countries. I have often seen Foreign Office human rights assessments that bear no relation to what I or anyone who knows the country concerned knows about what is going on there—or perhaps the Government hear only what they want to hear. Secondly, there is a lack of objective consideration of the credibility of applicants. Finally, there is not enough proper consideration of torture and medical evidence.

Before the Government tamper with appeal rights, why will they not look at the quality of the initial decision making, because that in itself would speed up the system? It is no good saying that there are bound to be a few mistakes. We are not talking about a few mistakes. Any of my colleagues who deal with immigration and asylum day in, day out will say that the proportion of poor initial decisions is far too high.

Photo of Keith Vaz Keith Vaz Labour, Leicester East 7:30 pm, 1st March 2004

My hon. Friend has sat through many debates on immigration Bills with me over the past 17 years, but does she not find it astonishing that the Government have proposed no package of measures to improve the operation of the Home Office? I am not saying that the proposals to remove the second tier of appeal would be acceptable if such measures had been introduced, but the Government have not even thought of a way of improving that first process before removing the right of appeal.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

Of course my hon. Friend is right. If the Government had proposed a package of measures—legal measures or merely changes in process—to improve the initial decisions, the House would look more favourably upon their suggestions on the appeals process.

The Constitutional Affairs Committee, of which my hon. Friend is a member, said:

"The new proposals do too little to address the failings at the initial decision-making level and the low level Home Office representation at initial appeals."

Apparently, there is no Home Office attendance at up to 40 per cent. of cases. How can Ministers ask the House to set what might be a very damaging precedent in doing away with tribunal appeal rights, when they are not prepared to take the administrative steps to ensure that the Home Office is represented at all initial appeals?

The Home Affairs Committee said:

"The real flaw in the system appears to be at the stage of initial decision making, not that of appeal."

Of course layers of appeal are needed because of the poor overall standard of decision making at the very first tier, which is the only check and quality control. Worse, where people know that the quality of initial decision making is so poor, it is an incentive, but not the only one, for asylum seekers to play for time. We could with more confidence defend a speeded-up system if we had more confidence in the initial decisions that it takes.

The Constitutional Affairs Committee, which is not packed with dangerous radicals or even extremist Tories, said:

"We recommend that the removal of a formal tier of appeal should not be undertaken until it can be shown that there has been a significant improvement in initial decision making and the rise in the number of successful first tier appeals has been substantially reversed."

In other words, get the system right first. The Government should get the system working efficiently and fairly before tampering with fundamental rights of appeal.

I note with some sadness that no Labour Member has so far spoken to support clause 11. I do not believe that a single Labour Member will rise to support clause 11, and I hope that those in the other place will read the report of the debate in Hansard and realise that the proposal to do away with a tier of appeal rights has no support among Government Members. I hope that that will strengthen the Lords in doing what it has to do in relation to clause 11.

There is no doubt that the Government have made much important headway in trying to reorganise, streamline and make our asylum system more efficient. No one who has dealt with the system could fail to appreciate that the Government had a Herculean task; but, as has been said earlier this evening, in doing away with a whole tier of appeal rights, the Government are going a step too far. They need to knock out clause 11, and return to the House with a package of proposals to improve the appeals process altogether. It is with some regret that other hon. Members and I tell the Government that we cannot support clause 11. We will support the amendment to remove it, and we look to others in another House to reinforce our view.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

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— unfortunately— 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.

Photo of David Winnick David Winnick Labour, Walsall North

I am very unhappy with the Government's proposals. If we were in opposition I can imagine what we would be saying, and it is quite likely that those Conservative Members who now oppose the proposals would be arguing in favour of them. However, that is the nature of politics.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I do not think that we would, because the proposals are so fundamentally objectionable in terms of the idea of the state in which I want to live. However tempted one might be by the Government's proposals—I can understand that some people might be tempted by them—I could not go along with them under any circumstances.

Photo of David Winnick David Winnick Labour, Walsall North 7:45 pm, 1st March 2004

I accept what the hon. Gentleman says, but whether a Conservative Government would take that line is a completely different matter.

As I said in an intervention, this debate is being held against the background of the demonisation of a group of people—asylum seekers—over the past few years, and the Conservative party must accept some responsibility for that. I have seen leaflets distributed in constituencies that caused me to wonder whether the British National party produced them, and some of my hon. Friends can doubtless say the same. [Interruption.] The shadow Home Secretary shakes his head, but that is the unfortunate fact. Of course, the media have also played a part in demonising asylum seekers at every opportunity. Although I am unhappy with the Government's proposals and I do not intend to vote for them tonight, I can understand why they are responding—wrongly, in my view—to that situation, and to a climate of opinion that demonises the people to whom I have referred.

I am perhaps the only person in the Chamber who was here in the late 1960s, when another group of people were being demonised who were not in the United Kingdom: east African Asians. Because of the clamour—involving Enoch Powell and the rest of it—it was decided that they should not be allowed to come to the United Kingdom, despite the promises that were made. I was one of the 50-odd Members of Parliament—mainly Labour MPs, but not exclusively so—who voted against that proposal.

Of course, there is no automatic right in terms of moving from the adjudicator to the tribunal—or at least, that was the case when I was involved in the appeals system. One had to rely on points of law, and when a client had lost a case and wanted to go to the tribunal, one would often have to explain the facts of life to them. Unless such points of law existed, the case could not be made for reviewing, and possibly reversing, the adjudicator's decision. But what worries me—

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

In the light of my hon. Friend's experience of the appeals system, is he not concerned that the quality of representation of many applicants for asylum is very poor? They often lose their case at the first hurdle because of poor quality or non-existent representation, and at a later stage it is almost impossible to retrieve the situation. Taking away any kind of appeal actually makes matters worse.

Photo of David Winnick David Winnick Labour, Walsall North

My experience dates back over many years—I have represented my current constituency for 25 years—and I can only hope that that was not the situation when I was involved in the appeals system. I hope that representation is good, and I am sure that solicitors and the Immigration Advisory Service, which I used to be involved with, do as fine a job as possible. However, I accept entirely that, in many cases, that is not so.

I cannot disagree with the speech made by my hon. Friend Ms Abbott. It is unfortunate and unacceptable that the new tribunal will be able to make decisions that cannot be reviewed. I do not necessarily go along with the argument that today it is the asylum seekers and tomorrow it will be another group of people. Nor do I agree with the view that the Government do not want judges to be independent, and that they want them to be their virtual puppets. To the extent that that view is being advanced, it is an exaggeration and a false description of the Government's position.

Having said all that, I believe that the Government have gone too far. It is clear that the proposals will be accepted, and I do not challenge for one moment the view that they will enjoy a good majority, but I do agree with my hon. Friend Tony Wright that the likelihood of the Lords approving the proposals is very remote indeed. The Government will have to be less dogmatic, and it would be far better if they listened closely—if not to the Opposition then to their own Members.

It speaks volumes that no Labour Back Bencher has decided to come forward to defend and to justify what is being done. I therefore hope that even at this late stage, it would be possible for the Government very seriously to reflect on our concerns and reservations.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

David Winnick contrasted what he thinks might happen if there were a Conservative Government with what is happening while there is a Labour Government. I think that he is wrong about that, and that no Conservative Member would have presented such a proposal to the House. Indeed, I find it a huge surprise that any Member would do so, but as it has happened we have to fight it very hard. The Minister should note the fact that no Member of any description has supported it or thinks it tolerable. The reason for that is rather serious: it is that none can believe that a Government would present such a proposal. I remember when we debated the inclusion of the European convention on human rights in British law. I was doubtful about the value of doing so, because I felt that the convention defends people against things that would not be done in Britain in any case. Now, the Government are proving that we need it.

Several aspects of the proposal are seriously and fundamentally wrong. First, it treats people who happen to be foreign differently from those who happen not to be foreign. That goes against the first principle of English law; and it goes back, as my hon. and learned Friend Mr. Garnier said, not to some enlightened judge of the 20th century, or even an enlightened judge of the 19th century, but to some pretty unenlightened judges of the 18th century, who made it clear that it was in the nature of British law not to treat people under its jurisdiction differently because they happened not to have been born here or not to have British citizenship. This measure represents a serious departure from what has been a very important example to other people.

Secondly, it sets up a system in which, to all intents and purposes, there is no proper appeal to a court. I accept the points that have been made about speed and support the amendments tabled by Conservative Members, but remind the Minister that there is a great deal of difference between speed and making bad law. In doing something more quickly, one must not deny people their fundamental rights.

Thirdly, it sets a bad example. The hon. Member for Walsall, North suggested that if the Conservatives were presenting this case and the Government were in opposition, they would be fighting it tooth and nail. I just wonder what we would think if one of the friendly nations across the channel introduced this change in the law. We would say, "Gosh, that just shows how good British law is: we would never do something like that." If it took place in some African state, we would say, in rather superior mode, "I wish they'd follow the British system." We would be unable to justify it happening anywhere else, yet in a few moments the Minister will get up to justify it here in Britain—the nation that has always stood for fair do's for people even when it is inconvenient.

I am worried that the Minister has, yet again, made me vote on the left on a legal matter. That embarrasses not only me, but my constituents, who cannot understand why every time there is a change to the legal system—whether it is the Criminal Justice Act 2003 or the Nationality, Immigration and Asylum Act 2002—they find their Conservative Member of Parliament having to vote on the left of the Government.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend should not be worried: he is not voting on the left. The point has been well made that many Members on both sides of the House can unite around this issue and express their anxiety. I suggest that the anxiety felt by my right hon. Friend, which he shares with me, fits fundamentally with Conservative ethics—it is a concern about the rule of law. That is a very traditional approach. He should reassure his constituents that he wants to stand up for the rule of law, as a good Conservative should.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I am perfectly prepared to say that—indeed, I have been doing so—but it does not get around my problem. The only people who would stand up in this House to support the Minister are those on the far right, none of whom should be elected to it. They are people like the man who, only a short time ago, stood as the British National party candidate in my constituency, so disgracing the electorate. I feel very strongly about this because I dislike and despise that party's policies, some of which are based on the idea that foreign people do not have the same rights as our own citizens and that a distinction should be drawn between our citizens and other people because they do not count as much. The Minister will have to do a lot of talking to prove to this House that his proposal does not mean that, although I believe that to be beyond even his style of oratory.

Fourthly, I am a believer in infallibility, but only that of the Pope: I do not believe in the infallibility of tribunals, bureaucrats or much of the asylum and immigration service. It is manifestly unacceptable to install in our law a system that depends for its acceptability on the infallibility of people who have shown themselves to be utterly fallible throughout last year, the year before and every year that I can remember.

Fifthly, there is the issue of delays, which has been discussed by several of my hon. Friends and other Members. The constituency of Suffolk, Coastal is not subject to the degree of pressure from asylum seekers that is experienced in the constituencies of many Members who have spoken. However, I have been involved in quite a few cases in my surgery, and in not a single one could I suggest that the Home Office has acted with dispatch. In all my many years as a Member of Parliament, I cannot remember the Home Office, under any Government, being described as speedy. Spot the deliberate mistake: "I am so pleased", says a constituent, "to have had a rapid answer from the Home Office." Who has ever heard anyone say that? How many Members of Parliament could say that they have never been involved in cases where the speed has been so lacking that the constituent's documents have been lost? How many could say that they have not had a case where the constituent's documents have been lost twice? I was involved in one where the documents were lost three times—no more than that, as yet, but perhaps if I stay in this House for another 20 years it will happen. The truth of the matter is that the Home Office has an appalling reputation in terms of the speed with which it deals with cases and its ability to lose the relevant documents.

I therefore agree, unusually, with a Labour Member who said that it would have been sensible for the Government to present a package of measures to show that they would tidy matters up, put their house in order and make the Home Office so fast in its dealings that it would be reasonable for it to request rapidity from others.

My last point is perhaps the most important. People who are in a privileged position should be especially careful about those who are not. Every hon. Member is in a privileged position because we know that the law will treat us fairly. Everybody who is born British should remember that it remains a considerable privilege because we live in a nation where we do not go about in fear, and when something goes wrong, we have a right and an opportunity to rectify matters. In that, we are not in the majority in the world. People like us, with privileges, should be especially careful about taking away those of the unprivileged.

At the beginning of fair trade fortnight, many of us are concerned that rich countries take from, rather than give to, the poor. Many of us believe that huge changes should be made to the way in which the world works. We are especially worried that the poorest countries are providing capital to the rich rather than the other way around. We may take time to do something about that, but to take today the step of removing from people the few rights that they have and the small access to freedom that we give them is deeply offensive.

I hope that all hon. Members who are in this country because, in the recent past, this country welcomed them or their ancestors, will think carefully before they vote for such a fundamental change. The privileged should certainly remember their position; those whose privilege depends on some past generous decision should be even more worried about the measure.

It is unacceptable that the House of Commons should rely on the House of Lords to put right something that should never have been introduced. We are the elected House; we should stand up for the freedom of individuals. We should be ashamed that such a provision was brought before us and ensure that it is thrown out.

The Under-Secretary should ask himself how he can come to the House to defend such a measure. Why is it him? Where is the Home Secretary when we are making a fundamental change to the law as it has existed in England for hundreds of years? He leaves a poor junior Minister to defend an impossible case, which would not have been presented were not the Home Secretary the man he is. Such a provision would not have been introduced without his personal decision. Yet whom does he leave here? A Parliamentary Under-Secretary. He is not willing to come to the House to explain why 300 years of law should be overturned. It is a disgrace and I hope that the House of Commons throws out what should never have been presented to it.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North 8:00 pm, 1st March 2004

It is a pleasure to follow Mr. Gummer because he is correct that we are privileged and enjoy rights, and that that does not give us the right to take them away from anybody else. If we pass clause 11, we will remove the right of appeal from some of the most vulnerable people in the world. Some of them have arrived in this country believing that they were coming to a place of safety. As my hon. and learned Friend Mr. Marshall-Andrews said earlier, if we remove those rights from non-British nationals because that is easy, it is not difficult to extend the principle.

Last week, we passed the anti-terrorist measure that allows the Home Secretary to detain foreign nationals indefinitely because they are foreign nationals and he believes them to have some terrorist connection. I believe that everyone, irrespective of nationality, has exactly the same right to access to justice. We should stand up for that important principle. If we vote for clause 11 tonight, we shall allow a parallel system of justice to be established and remove a right of appeal, and it will be a very bad day. I hope that the House of Lords will reverse such a decision, but it is sad that we have to rely on an unelected Chamber to overturn a decision that we should not accept.

Photo of David Winnick David Winnick Labour, Walsall North

My hon. Friend knows that I largely agree with him but I want to put the matter in perspective and I do not apologise for speaking about the Conservative party's position. Is it not a fact that the Conservative scheme would not allow asylum seekers into the country, but put them on an island, from where they would have no right of appeal?

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I support people's rights to seek asylum according to the terms of the 1951 Geneva convention. The basic right that it sets out for people to seek asylum because they are in fear of persecution for religious, social or political reasons should not be tampered with. It is important to stick exactly to that principle.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Whatever the merits or demerits of the proposal to process asylum seekers offshore, I simply point out that, in such processing, all the protections of the law, including existing powers of appeal, would be there for those seeking asylum.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

If I may, I should like to revert to clause 11, which we are debating.

All those who seek asylum have a right to have their case properly considered and tackled, and a right of appeal against any decision. Those rights include that to proper representation, and that is why I intervened on my hon. Friend David Winnick. As a Member of Parliament who represents an inner-urban constituency, where many people seek asylum, have sought it and will doubtless seek it in future, from all sorts of tyrannical regimes all around the world, I find it desperately sad that they are so badly advised and represented at the beginning of the process that the case is almost lost before it has begun. It is the Home Office's responsibility to ensure the availability of adequate legal advice and good quality representation. However, legal aid companies that have done good work on representation are closing by the day; good quality lawyers are giving up on asylum work because they can no longer afford to do it, and some of the most desperate and vulnerable people are left unrepresented.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

My hon. Friend referred to our unfortunate reliance on the House of Lords to throw out the clause. Is not one of the most unfortunate aspects that, if the House of Lords were reformed so that it was wholly appointed, it would be even less likely that the second Chamber would make good such provisions?

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

As a democrat, I favour neither a hereditary nor an appointed but an elected Chamber. All Chambers should be elected and thus mandated. However, unfortunately, I shall not make the final decision.

Let us revert to clause 11. In a couple of weeks, the United Nations Commission on Human Rights will start its annual session, which will run for four or five weeks, in Geneva. Doubtless, it will rightly pass many condemnatory motions about human rights abuses throughout the world. How embarrassing it would be if the commission passed a motion that condemned Britain for its failure to provide a proper appeals system for asylum seekers and for its deporting them to places of danger. We should consider that.

Many hon. Members will have received an excellent document from Amnesty International that outlines the way in which Home Office decision making fails refugees. It tackles the concept of safe countries and the strange advice on which the Home Office appears to rely when deciding what is safe and what is not.

Three weeks ago, I was invited to chair a meeting in the House of Commons of the Congolese community in this country to discuss the situation facing their country, their safety and their concerns. Some 3 million people have died in the current war in that country—a death rate of first world war standards recorded in the 21st century. Fundamentally, it is a war about resources, with lots and lots of complications around it. I asked those at that meeting, which was sober and well informed—some of the people who attended had lived in this country for a long time and had sought asylum 20 or 30 years ago, and some were more recent arrivals—what message they would like me to convey to the Government. Their message was that they wanted peace in their country, and a Government in their country who were representative, accountable and democratic, but above all, they did not want any of their compatriots who had sought asylum in this country to be deported back to the Congo, to a place of a danger.

The Home Office decides the suitability or otherwise of various countries to receive failed asylum applicants on the basis of a sort of tick box process, saying, "Does it have an independent Government? Does it have an independent judiciary?" In many cases, the answer is yes, yes, yes, so it is safe to deport people. Every Member of the House who has dealt with deported asylum seekers who have been returned to various countries in west Africa and other places will know perfectly well that they are not safe when they return—that they can be pursued, arrested, tortured and beaten, and they can disappear. We have deported asylum seekers to those places of danger, and I have had a considerable number of such cases.

As for some of the letters sent out by the Home Office, or the statements made to appeal committees against an asylum refusal in this country, I will quote one that was reported in the Amnesty International document concerning Colombia. It states:

"The Secretary of State considers that the authorities of Colombia are capable of offering you effective protection. With regard to the offences committed against you, and the failure of the police to capture the perpetrators, the Secretary of State does not consider that the inability of the police to identify and apprehend such people can be construed as complicity in, or support for, such behaviour."

I was in Colombia two weeks ago, and I met trade unionists who had seen fellow trade unionists murdered—the largest number in any country in the world in the past year—lawlessness and the ineffectiveness of the civil authorities when dealing with those cases. We have to be serious about this matter. In denying people the right to appeal, we are ipso facto sending those people back to grave danger and in some cases possible death.

Photo of Louise Ellman Louise Ellman Labour/Co-operative, Liverpool, Riverside

Is my hon. Friend concerned that the issue that we are now debating is fuelled by a hardening of public attitudes towards people whom they see as strangers? Is he concerned that in pursuing that course the interests of justice might well be lost?

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

My hon. Friend makes a fair point. It seems to me that much of the policy surrounding asylum seekers is fuelled by the headlines in the Daily Mail and the Daily Express, and the comments of some Members of the House at various times. It is the duty of Members of Parliament to stand up for rights, justice and vulnerable minorities. If we must pay a political price for it, so be it, but we must stand up to maintain those principles and that strength.

In conclusion, the appeals system, far from being abused, is difficult to activate at present. One must get leave to appeal. According to the Home Office figures for last year, 4 per cent. of such appeals were successful. If this measure is passed, those appeals would be denied, which means that 2,900 people would be deported from this country who might have won an appeal. In the previous year, a much larger number won those appeals. It is up to the Government to explain exactly what they mean by this measure.

We passed the Human Rights Act 1998. We have signed up to all the UN conventions, and we signed up to the 1951 convention. We pride ourselves on being a place of safety and liberty, and yet we deny it to people. Daily, I meet asylum seekers living on nothing, scrounging to try to survive in our society, wanting to work, wanting to contribute, but who are in danger of being deported back to the horror from which they thought that they had escaped by coming to this country as a place of safety. They are an easy target for the racists, the British National party and the tabloid press. We should be able to do and say something better in the House to protect that right of appeal and that fundamental right of asylum. Surely, as elected representatives, we should carry out that duty tonight.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee 8:15 pm, 1st March 2004

The amendments under discussion bear on issues that were raised by the Constitutional Affairs Committee in our report published last week. We began studying the immigration and asylum appeals process last year—proposals that had not yet come into effect from the Nationality, Immigration and Asylum Act 2002. We rushed to produce further reports on the Government's restrictions on legal aid in asylum and immigration matters, and we rushed the report out to make sure that the House had the opportunity of seeing our recommendations on this Bill, to which a number of hon. Members have referred. That Act, which was the Government's declared means of speeding up the process of appeals, has had no time to be assessed. If a process is introduced with that as the avowed purpose, at least we should allow more than a few months to establish whether it achieves that purpose. It is impossible to assess within a few months whether it has done so. The Government have simply not taken the opportunity to evaluate their chosen method of speeding up the process.

In the course of that, we discovered that the initial decision-making process is so often faulty that to remove part of the appeals process, and certainly to remove the jurisdiction of higher courts, will be doubly dangerous, because there are obviously so many failings in the initial decision-making process. We went to India and Istanbul to look at the problems confronted there, we looked at many aspects in this country, and we received a wide range of evidence from both sides of the table—from Government, applicants and those who represent them, and from the judiciary, which was a source of real concern. One of the points that the Committee would want me to emphasise is that the measures under discussion tonight are not just about asylum but about immigration applicants of all kinds, including people seeking family reunions and people seeking family visits for weddings and funerals. Members will know of the extent to which they have had to become involved in trying to get people's cases dealt with in time for them to attend a funeral or wedding.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

The right hon. Gentleman said that it was not just about asylum but about visits and so on. Does he agree that it is not just about asylum, immigration or visits, but to quote the Matrix chambers brief, about whether there should be

"a precedent for exempting the executive and administrative tribunals from seeking to understand, apply or be governed by the law"?

That could apply to any tribunal.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

That is true, and it is a point that has been well made in all parts of the House. I must emphasise, however, the range of categories of people who are outside this country but who are subject to the same process because they are seeking admission to this country to visit members of their family, or to join members of their family, in a process of inward immigration, which must be regulated but in which they are entitled to a fair hearing and a proper appeal system.

Then we encountered the wide range of Home Office delays in processing appeals. It struck us that it should not be the Home Office that processes the appeal. It should not be the Home Office that receives the appeal and effectively decides when the tribunal can deal with it by sitting on those papers for quite some time. In any other judicial process, it is surely not one of the parties to the argument that effectively makes the decision about when the tribunal can begin to consider the hearing of the matter. Appeals should go to the immigration appeal authority in the first instance and not to the Home Office.

Then we were concerned about the non-appearance of presenting officers. It seemed to us extraordinary that in so many cases—30 or 40 per cent.—the Home Office should not be there to present the reasons why it objects to the appeal being granted. That places an unreasonable burden on the adjudicating body and underlines again the need to be able to refer the matter to a higher level, if that has happened. Indeed, it led us to ask the Government to consider whether the judicial person in that situation should do something that was not normal in English law—to adopt a more inquisitorial approach simply to ensure that all the facts are brought out, which cannot be the case when the adversarial system is not operating because one side is not present.

Then we had doubts and anxieties about the fairness of out-of-country appeals—non-suspensive appeals—and about the disparity between the success rate in paper appeals and in appeals taken orally, in which either the applicant or the family of the applicant were represented.

There is a clear disparity. It suggests that if people do not know that it is possible to undertake an oral appeal, or if there is no one who can attend an appeal on their behalf, they will benefit from a less good decision. That is another reason to allow the matter to go further.

When we asked the Minister in the Constitutional Affairs Committee about the ousting of the jurisdiction of the House of Lords, even in cases in which the tribunal president might want the Lords to consider a wider legal matter, he said that the Government were minded to allow the Lords at least a limited ability to define matters of law in an area in which their role had been so important in the past. So far, however, no amendment has been tabled to allow that.

Let me select the two general conclusions made in the Committee which I consider most relevant to our discussion. In paragraph 70, we say:

"An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial oversight of lower Tribunals and executive decisions should be retained. This is particularly true when life and liberty may be at stake."

In paragraph 71, we say that the system of statutory review established by the 2002 Act, which was invented to shorten the previous system of review, had not had long enough in which to operate, and that no change should be made

"until there has been more experience of its impact."

Yet here we are, in the closing stages of consideration of the Bill, seeing the jurisdiction of the superior court ousted without any of the points I have mentioned being satisfactorily addressed. That certainly convinces me that I should vote for amendments that either remove clause 11 or substantially alter its impact.

Photo of Vera Baird Vera Baird Labour, Redcar

The House is full of grandiloquence tonight, but I have only five minutes; and although the issues are large, it seems to be that the changes required are relatively small. What is required is an independent appeals system. That would restore the constitutional propriety; it would restore the rule of law; it would give coherence to the proposal, and make it compatible with the convention. At present there is no independent appeals process, and that is the trouble.

There is nothing magical about judicial review. My hon. and learned Friend Mr. Marshall-Andrews spoke of 260 decisions that had been judicially reviewed as if they had been successful appeals. What happens is that a decision is examined, and found to have been made in a reasonable or unlawful way. The case is then sent back to the adjudicator, who may make the same decision or may make a different one; but he will have to do it correctly the second time. I make no comment on how many of the 260 were true appeals and how many were not, and I entirely agree that one person wrongly sent back to torture because of the lack of a proper appeal is too many; but I think that that makes the clear point that judicial review is not necessarily the appeal process of choice for decisions that need to be not only right and accurate, but speedy.

Judicial review is not such a marvel. It was ousted by an Act of Parliament very recently, and replaced by a statutory review, or independent appeals system—perfectly unexceptionably, it seems. Moreover, although many speakers have decried the ousting of judicial review in criminal cases, there has been no entitlement to it—except in relation to very peripheral matters—since the century before last. It is not a key part of our constitution.

It is imperative, however, that the clause refer to an independent appellate process. I said the same on Second Reading, and my right hon. Friend the Minister for Citizenship and Immigration said that the Government felt that the clause did refer to such a process. That is a review, on paper, by a colleague of the adjudicator, of the same seniority, who has been to the same classes and read the same books, and been taught by the same lecturers. The appeal principle is that there should be a proper review by a senior judge, better qualified and more experienced, who can truly review.

As the clause stands, we are talking about passing the appeal to the chap on the next desk—a member of the same team. That is a curious notion of independence. What is required is the input of some senior judges. My suggestion is a small one: scrap peer review as a means of appeal, and bring into the single-tier new court a separate level of appellate judges, not at adjudicator level—which is district judge level, and quite low—but at the very least from the circuit bench, and probably from the High Court. They will be separately appointed, and they will not overlap. That is completely consistent with the usual manner of appeal in most courts in the land. In the unified criminal court that has just come into play, appeal is made from the magistrates court to the Crown court. They are quite separate, and the second is more senior than the first. From the county courts appeal is made to the Court of Appeal, and the second is senior to and independent of the first.

I thought that I heard the Minister talking on the radio this morning about the possibility of some such change. It is imperative, and it will be hugely difficult for me to support the clause if it is not made. The Government are not just ousting judicial review; they are ousting all appeals and all application of the rule of law. I also think that that appeal level should be able to deal with oral hearings if it wishes. That too would be only a minor change, but it would mean no more delay in any applications; it would involve no more people—just different people. Indeed, it would involve no difficulty at all, yet it would rectify all that is currently wrong.

I echo what was said by my hon. Friend Tony Wright. If these changes, or something like them, are to be introduced elsewhere, please let us not be driven through the Whips system to erode constitutional principles that we all hold dear when the Government intend to reverse them later.

I want to add a footnote, but an important one. I feel that in the interests of consistency and the continuing development of this branch of the law, what is currently a right for the tribunal president to refer a case to the Court of Appeal ought to become a right of appeal as well. In Committee, the Minister said that the president would almost certainly regard himself as bound by what the Court of Appeal came back to say. There is nothing now to stop the parties from writing to him and asking him to refer it to the Court of Appeal. We are only a small step away from allowing the parties to make a application for leave to appeal, with the president as the filter. After that, preferably, there should be a back-up procedure, with the Court of Appeal being allowed to second-guess him on a reviewed application.

As I said, there has been much grandiloquence. It suggests that the distance between clause 11 and the sound constitutional principles of which we are all fond is desert-wide and chasm-deep. In fact, only a short step is needed to upgrade the review judges to a better calibre, and to firm up into a proper structure the current ghost of an appeal to the Court of Appeal.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

I shall speak briefly, as I know that Mr. Gerrard is anxious to speak, and he was an active member of the Standing Committee.

I add my voice to the condemnation of clause 11 that we have heard from every speaker. I shall not go through all my reasons, but the key reason is of course the fact that the clause will oust the jurisdiction of the courts. It is not acceptable to remove a whole swathe of administrative decisions from legal scrutiny. That would confer virtual legal immunity on those charged with the operation of our asylum and immigration system.

The proposal is therefore unconstitutional, sets a dangerous precedent and, as hon. Members have pointed out tonight, effectively creates a second-class citizen in the UK. That is wholly unacceptable and is not the tradition of legal principles in my country of Scotland. It was patently clear in Committee that the Government are adopting such a draconian position simply for administrative convenience. However, administrative convenience cannot cure the fundamental defects of the Government's approach.

The Under-Secretary has heard every speech tonight, and every speech has been critical. I hope that he has been listening; he has said nothing yet. I look forward to hearing what he has to say, but he must accept that when every hon. Member makes such negative comments in a debate about his clause, surely the Government must think again.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow 8:30 pm, 1st March 2004

I shall be brief, as we need to give the Under-Secretary time to reply. It has been mentioned several times already that no one has spoken in support of clause 11, so let me reassure the Under-Secretary from the outset that that is not going to change. I am sure that he would not have expected me to say anything different.

This is the most serious issue in the Bill by far because this part of the Bill will have the greatest impact on the greatest number of people. It is unprecedented for judicial oversight to be removed completely from any tribunal. No other tribunal in the whole of our legal system is not subject to judicial oversight.

My hon. and learned Friend Mr. Marshall-Andrews mentioned earlier in a brief and powerful speech that we could expect this to happen only to people who were not British. In fact, it will happen to relatives of people who are British. As hon. Members have pointed out, the provisions will apply not just to asylum claims, but to immigration cases. Our constituents will tell us about their relatives, who will be affected by the clause.

The Government's arguments have been twofold: delays and numbers. I have yet to hear on Second Reading, in Committee or now on Report any argument of principle from the Government. The delay argument does not stand up, as has been pointed out many times in this evening's debate; nor do the numbers. The Government have not really played a numbers game—my hon. and learned Friend the Member for Medway was not quite right on that—as much as a percentage game. They have said that only 3, 4 or 5 per cent. of appeals end up being won at the end of the process. However, if that small percentage is turned into real numbers, it is clear that we are dealing with 2,000 to 2,500 people every year, and the decisions taken could well affect their very existence. I do not believe that we should be taking any chances whatever in respect of getting it right on that sort of issue. A clear issue of principle is at stake here—ensuring that justice is done and taking cognisance of the consequences of a wrong decision.

Finally, I shall say a few words about Government amendments Nos. 79 and 80. In some cases, a right of appeal to a tribunal would not exist in any case, but the amendments will take away judicial oversight from people who might be removed from the country and unable to challenge the decision. There could be grounds for a challenge—that the wrong person is being removed, for example, or that someone is being removed to the wrong place. We all know of examples where that has happened.

It is a thoroughly bad clause. I would have liked to press my amendment No. 32, but in the absence of that, I shall certainly vote in favour of amendment No. 30.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

What the Government propose has to be fair, principled and effective. Those have to be the watchwords of the Government's reforms, and clause 11 is central to our objective of delivering a streamlined appeals system. Appellants can be sure of independent and high-quality decision making and the system will deliver justice—but also finality.

We have heard the concerns of hon. Members on both sides of the House, which have been expressed on Second Reading, in Committee, in the Constitutional Affairs Committee and again on Report tonight. We have listened to them, and the Government amendments, to which I shall return in due course, are directly intended to deal with them.

In responding to amendments Nos. 30 to 32, it is also appropriate to cover amendments Nos. 92 to 96. Those amendments would effectively prevent the introduction of the single appeal tier, so I am afraid that I cannot accept them. They would allow the continuation of a multiple-tier appeals system and would retain existing routes to the higher courts or would introduce variations of the new review and appeal arrangements. In a sense, that is exactly what we are trying to avoid. It is vital to have early finality.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

My hon. Friend said that he had listened to the objections to clause 11. In that case, he will know that one principled objection is to the removal of a whole tier of appeal rights. Apart from administrative convenience, does he have any other reason for removing that whole tier?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

May I tell my hon. Friend—she is my hon. Friend—that I am coming to that? It is not about taking away an additional tier, because we want to be satisfied that there is quality in the single tier. In fact, we meet and go beyond our human rights obligations under article 13.

As I was saying, it is vital to have early finality, which will benefit—this is an important point—the genuine applicant, who will receive a prompt decision on the application and will be able to start life in the UK. At the same time, it will also deter those applicants who hope to play the system to their advantage to frustrate removal. There must be a fair balance, and it is right to secure that for members of the public.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Does not the Minister agree that the tight wording of amendment No. 93 would, in fact, provide a streamlined system while still preserving independent judicial supervision of it? If the Minister goes down the road that he proposes, far from delivering finality, there will be endless arguments in the courts—the Minister's drafting will not be able to prevent it—in which one challenge after another will be mounted to the entire legislation. How will that help good government?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I have to tell the hon. Gentleman that he is wrong about that amendment. It would mean having multiple layers of appeal and remittals back down to the single tier. That would bring about a long and protracted process, which is exactly what we are trying to reform.

NOTHING

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

If the Minister is against having a long protracted process, will he accept our new clause 8, which introduces an element of speed into the process, particularly in the early stages? If he will not, why not?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I shall come on to new clause 8, which is designed to specify a period of six weeks directly in the Bill. That would be unhelpful.

Let us examine what a person challenging an immigration decision can reasonably expect in this country. A person clearly has a right to expect an appeal to be heard fairly in a court, where the facts of the case can be put forward. If the case has merit, and the people do not have sufficient funds to meet the cost themselves, they can expect to be legally represented. Under our system, they will be able to do so.

They can expect the decision to be taken by a member of the judiciary who is completely independent of the original decision maker, and who is an expert in immigration law.

That is what appellants will be able to do under our system. Our measures fully deliver all that a person challenging an immigration decision could reasonably expect. We have designed a new system to ensure that there is improved quality, end to end, which builds on existing best practice and expertise in the current system.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Will the Minister at least acknowledge that the system that he is putting in place is entirely different from that which a person would reasonably expect if they were going through a court procedure? If a market trader is denied his market stall, he can go to the magistrates court. If he does not like the decision of the magistrates court, he can go to the Crown court, and then have his case judicially reviewed. However, the Minister is proposing an entirely different system, which will deny all access to the higher courts. How can he say that that is compatible with our legal system?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The hon. Gentleman has referred to principles, so let us return to fundamental principles, and look at the European convention on human rights. I have that document here. Article 13 of the ECHR says that the applicant should be able, in seeking an effective remedy, to have independent scrutiny of the original decision. What in the system that we propose will not give the applicant independent scrutiny? In fact, our system contains not only the single tier of appeal but the review tier, so we meet and go beyond our obligations, and the applicant will have the fair hearing that the hon. Gentleman wants him to have.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have always understood that the Human Rights Act 1998 lays down certain minimum standards. There are countries within the scope of adherence to the ECHR about whose human rights record there are grave doubts. Why should we in this country abandon a superior system and reduce ourselves to the level of the lowest common denominator? Is not that one of the mischiefs that the 1998 Act has brought in, because the Government use it frequently and consistently to diminish rights?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

We are not only meeting the obligations of the ECHR but going beyond them. The hon. Gentleman asks why we are introducing this system, and I shall tell him. This is what I tell my constituents and what I believe all hon. Members should be saying to theirs. It is because between October 2002 and September 2003, the adjudicator appeal stage received 70,198 appeals, of which just under 59,000 were dismissed. It is because the Immigration Appeal Tribunal received just over 33,000 appeals, of which just under 2,000 were allowed. It is because of that—because people are playing the system—that the Government must act to deal with what is in effect an abuse of process in a system that does not give people finality. We must have finality, which will benefit the genuine asylum seeker. It will also benefit social cohesion up and down the country and meet our obligation to ensure that we have a fair system for asylum seekers and for taxpayers.

However, an appellant cannot and should not expect there to be an appeal process with multiple stages, through which they can avoid removal. Those who have no legitimate right to remain in the country simply cannot go on responding to every negative decision by mounting a further challenge. We cannot have an endless process of challenge after challenge.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Can the Minister explain to me why a market trader who happens to be British can make a proper appeal, whereas someone who is fighting for his life and who happens to be foreign is going to have less chance of a proper appeal? Is that not to have two categories of law? Why is the Minister daring to introduce that into this country?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 8:45 pm, 1st March 2004

I am doing that because—I shall put it very simply to the right hon. Gentleman—the market trader has no incentive to delay the system. In every other field of law, the applicant or claimant wants speed. He wants the judgment quickly. In this field there are in practice—I have given the statistics—far too many applicants, sometimes, as my hon. Friend Jeremy Corbyn suggested, aided by unscrupulous solicitors who seek to exploit the system. We have to deal with that. In a sense, it is not justice. It is certainly not justice for the British taxpayer who has to foot the Bill.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

The Minister may have misunderstood my point. My concern is the very poor quality of representation that many applicants have because of the inefficiencies of the legal aid system. They thus lose their right to the limited justice that they get under the present system, never mind under a future one.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I totally agree with my hon. Friend. That is why we have introduced the Office of the Immigration Services Commissioner, and taken all the action that we have on accreditation, to ensure that not only solicitors, but advisers, are up to speed and doing their best by those who would claim asylum.

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Photo of Vera Baird Vera Baird Labour, Redcar

Can the Minister tell me of any other area of our justice system in which a person is allowed only one judicial hearing, and no appeal? If he is going to permit, in excess of what is required of him, a review of that single decision, why not make that an independent one, and satisfy everyone?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

My hon. and learned Friend will know that judges in our system are not just independent of the Executive; they are independent of themselves, that is, they are independent of each other. Under this provision, the applicant, legally aided, who challenges the decision of the state and the IND—the immigration and nationality directorate—has an appeal to the new asylum and immigration tribunal. Then, if a clear error of law means that the decision would be substantially altered, he has a review mechanism. All the judges in the AIT are independent of each other. That is fundamental to our decision, and it is that rule that allowed the House of Lords to review its own decision in the Pinochet case. In a sense, that is what I seek to rely on in this matter. I have no doubt that the majority of the public agree with the balanced approach that we are taking.

It might be helpful if I explain a little more about how the system will work. As in the current system, a person with a statutory right to appeal against an immigration decision will be able to exercise that right of appeal to an independent judicial body. When lodging the appeal, the appellant will be expected to bring forward all the grounds of that appeal and any statement of additional grounds.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The Minister has mentioned speed and efficiency on a number of occasions. Why, when he brandishes the European convention on human rights in his right hand, does he disapply it with his left hand through the Bill? Will he explain his horror of the Human Rights Act 1998—which his Government introduced—in so far as it reflects on this Bill?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

This has already been explained to the hon. and learned Gentleman, who has much legal experience. I would have hoped that he would understand it. We have obligations under article 13, and we are meeting them with independent scrutiny. Should an applicant choose to raise human rights points, he will be able to do so on appeal and through the review mechanism.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

My hon. Friend said earlier that asylum seekers—and economic migrants generally, I suppose—had a vested interest in delay. On the contrary: to my mind, one of the worst aspects of being an asylum seeker or any type of economic migrant is the administrative limbo in which they can spend years and years. Why will my hon. Friend not listen to colleagues on the Constitutional Affairs Committee and do something about the quality of the decisions at the first tier, before he moves on to this drastic measure of curtailing appeal rights?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I know that my hon. Friend cares passionately about these issues and has campaigned on them for many years, but we are doing something about the initial decisions made by the immigration and nationality directorate. We have external scrutiny of those decisions through sampling by Treasury solicitors, and we are seeking to do more with the United Nations High Commissioner for Refugees. Yes, we want to do more in terms of those initial decisions. There are ways in which we can make them better, which is why we set up the country information panels. These are panels of experts who help our caseworkers and senior caseworkers to make their determinations. There has been improvement in the initial decisions over the last three or four years, since hon. Members began to raise these issues.

The majority of appeals will be listed for hearing before a single immigration judge. These judges, although independent and sitting alone, will have access to much better support and guidance than they do now. There will be a new collegiate structure for the judiciary in the tribunal. If a difficult point arises, the immigration judge will have the opportunity to discuss it with his or her experienced judicial colleague.

Several hon. Members:

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Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I would just like to make this point. It is important, and several hon. Members have raised it.

I want to assure those hon. Members who have raised this issue that there is absolutely no threat to judicial independence. We value the independence of the judiciary very highly. Adjudicators already work within judicial management structures. I want to reassure the House that I absolutely guarantee that at no time will determinations ever be altered by a more senior judge.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I do not blame the Minister personally, or his Department, for this mess. I blame the Minister for Citizenship and Immigration and her Department. If the Under-Secretary of State for Constitutional Affairs, my hon. Friend Mr. Lammy had come to the Dispatch Box with a package of measures to improve the operation of the Home Office—I know that the Home Secretary also feels that the culture of the Home Office needs to be changed in relation to decision making—we could understand that. He has, however, come to the Dispatch Box after the passage of this Bill through Committee with no new measures to make such improvements. That is the real problem.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I sit with the Minister for Citizenship and Immigration on the joint supervisory board for asylum and immigration. The Home Office and the Department for Constitutional Affairs have considered these matters across the board and we are doing a great deal to improve quality at the initial decision stage and at the first tier, to ensure that those who arrive here get a fair hearing.

I would say to my hon. Friend Ms Abbott that I did not say that asylum seekers sought to play the system. What I said was that we need to make the system fair for genuine asylum seekers. I believe that a speeded-up process without multiple layers will achieve that. We also need to acknowledge that we cannot sustain a system in which just over 33,000 people sought leave to appeal at the second stage, and in which only 2,000 of those appeals were allowed.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

Is not the immigration appellate tribunal already pretty good at filtering out the cases that stand no real chance? Of the cases that are considered, a significant number succeed. The tribunal already filters out those without merit quite efficiently.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

My hon. Friend must remember that within the single tier we have the mechanism of a review, headed by a High Court judge. The average legal experience of a judge in the tribunal, prior to becoming an old-style adjudicator, is 22 and a half years. The average experience of those who have become adjudicators—we have expanded the number—is just under five years more. We are talking about people making important determinations for asylum seekers in this country who have just shy of 30 years' legal experience. This is not some second-rate, old-style system. It is an important system that will consider important matters.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am going to make some progress. I have five minutes remaining and Mr. Heath wants to speak as well.

From the outset, some appeals will be listed for hearing before a panel of immigration judges. These will be listed if it is thought that that the appeal may give rise to a complex or novel issue where authoritative case law is required. It may be possible that complexity will emerge during or after a hearing by a single judge; if so, the case will be re-listed to be heard by a panel. The appeal determinations made by the tribunal should be final, and the decisions fully comply with our obligations under article 13. We are not stopping there, which is why we have the review mechanism within the tribunal.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

I have a lot of sympathy with what my hon. Friend is proposing, but the sticking point for me is the removal of the right to judicial review. He will know that in order to go for judicial review, the applicant needs to get leave for judicial review under RSC order 53; therefore, there is a filtering mechanism in the system already. I urge him to retain that filtering mechanism under RSC order 53 and to retain judicial review as a bulwark for the protection of the individual against the state.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Under proposed new section 108B, where there is a clear error of law that would substantially alter the original decision, the person will be able to have that review, which will be conducted by a High Court judge. The mechanism exists within the single tier.

I should add that the new appeal structure will preserve a continuing role for the appellate courts. We propose in proposed new section 108B a new referral process to the Court of Appeal or the Court of Session. This enables the tribunal to benefit from the appellate court's expert opinion, but without reintroducing opportunities for deliberate delay.

I wish to refer to Government amendments Nos. 78 to 81 and to amendment No. 97, tabled by David Davis. The Government amendments respond to concerns raised by the Joint Committee on Human Rights and other hon. Members. I am grateful to the right hon. Gentleman for amendment No. 97 and I hope that he finds that the Government amendments meet his concerns. The Government amendments clarify the scope of the ouster provision in proposed new section 108B. They make clear the Government's intention that legitimate challenges to IND decisions, particularly those decisions on arrest or detention, will not come within the scope of the ouster, which applies only to removal or deportation decisions.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

One of the many points that concern me about the Minister's remarks was his suggestion that judges should have discussions. Will those discussions be in open court? Will they be recorded, so that the applicant or the Home Office can hear the content of them? Will they be secret discussions, unavailable to public scrutiny?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The hon. Gentleman makes his point badly.

In conclusion, our proposal is fair and just, it includes a review mechanism and it meets our obligations under European—[Interruption.]

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

On a point of order, Mr. Deputy Speaker. It is right that the House should know whether the certificate from the Home Secretary that the original Bill is in accordance with the Human Rights Act 1998 stands, as it is not on this Bill—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I suspect that the hon. Gentleman's point is one for debate rather than a matter for the Chair.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

May I confirm that of course the certificate stands? We have that obligation to the House when we introduce a Bill, but not when the Bill is changed; it will be there again when we introduce—

It being Nine o'clock Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

The House divided: Ayes 97, Noes 303.

Division number 63

See full list of votes (From The Public Whip)

Question accordingly negatived.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.