moved Amendment No. 42A:
Page 13, line 29, after "Tribunal" insert "may have"
I trust that the amendment's measures are largely self-explanatory. We recognise the arguments put forward by noble Lords in Committee that subsection 2(a) of new Section 103A was not as clear as we intended. That is why we have tabled Amendment No. 42A, which has the advantage of being a formula from the civil procedure rules.
The Civil Procedure Rule Committee, when considering the rules relevant for the purposes of Section 101 of the Nationality Immigration and Asylum Act 2002, decided that it would be appropriate to add the words "may have". That addresses the point that when dealing with an application on the papers the judge might not be able to be certain whether an error of law had been made. We wish to stick closely to the statutory review test, which already has the benefit of judicial interpretation.
My Lords, in our original amendment, tabled on the first day of Committee, our test for review was more demanding, although it was predicated upon changes at the Home Office interview stage and the single-tier tribunal stage, which have so far not been forthcoming. So we will not contest it.
However, the Government will have to recognise that their amendment will have implications for their legal aid proposals. You cannot have a test for review consisting of the Government's new definition on the one hand, and a legal aid regime that gives legal aid only ex post facto for wins or near-misses on the other. That legal aid regime is clearly no longer appropriate. The list for provision of legal aid should clearly match the new government review test; otherwise the legal aid system will block access to rights now to be granted by legislation.
My Lords, in moving this amendment, I shall speak also to Amendments Nos. 44, 51, 52 and 59.
New Section 103A of the Nationality Immigration and Asylum Act 2002, added by this Bill, imposes a draconian timetable on applications for review of tribunal decisions. It allows a period of five days, beginning with the date on which the appellant is treated as receiving the notice of the tribunal's decision in accordance with the rules. Frankly, that is a ridiculously inadequate period.
First, the date of the actual receipt of notice may be later than the deemed date under the rules, particularly if the now notoriously unreliable postal service is used. It is perfectly proper to include a deemed date in a Bill, because it prevents problems of uncertainty about when notice was received. However, a deemed date is acceptable only if the time as a whole that is provided is reasonable and it can be accepted that the deemed date may be a day or two in advance of the actual date of receipt. In other circumstances such as those in the Bill a deemed date is not acceptable.
Secondly, the period allowed is not even five full days; in reality, it is more like four. As the Bill is drafted, the day on which the notice is deemed to have been received is the first day of the five-day period. Therefore, even if notice is deemed to have been received on a Monday and is indeed received on that day, that constitutes the first day of the five-day period, and the second, third, fourth and fifth days are Tuesday, Wednesday, Thursday and Friday. So the application received on Monday will have to be submitted before the court closes for business on Friday afternoon. That is inadequate time.
Let us look at what needs to happen. The appellant's lawyer, if he or she has one, cannot set out grounds of appeal before seeing what the tribunal has said and the grounds on which it has decided the case. The lawyer will therefore have to read the tribunal's decision, to consider further the legal issues involved in the decision and possibly consult the client—that may involve arranging a meeting at which an interpreter must be present. The lawyer will have to draft grounds of appeal, get the application in proper order and submit it to the appropriate court before it closes for business on the last available day. Lawyers are likely to be busy and have several cases running simultaneously, with the result that the one who handled the first stage may have other commitments, meaning that a new lawyer must be found to submit the application.
We recognise the power in subsection 4(b) of new Section 103D to extend the time, but that safety valve is not an adequate reason for allowing much too short a time for the basic period. If applications made out of time become frequent, it leads to unnecessary time-wasting and cost-wasting satellite arguments about whether there is adequate justification for the delay. Ten working days is quite a short period but would be just sufficient for these cases.
Amendments Nos. 51 and 52 follow on from the earlier Amendments Nos. 43 and 44. We recognise that there may be a need for power to vary the timetable by secondary legislation. But that power can be used not only to extend the time but to reduce it to a period shorter than that stated in the Bill. We believe that if it is used for that purpose, the order should require the affirmative resolution procedure. We feel that among the many defects of Clause 14, given that it is a considerable improvement on its predecessor, the extremely and unnecessarily short timescale that is provided for making the application is one of the worst. I beg to move.
My Lords, I support what the noble Lord, Lord Goodhart, has said. We are grateful that there has been some improvement in Clause 14. The Government ought to be congratulated as far as that is concerned. However, as the noble Lord, Lord Goodhart, said, the period of five working days is wholly inadequate. The purpose behind my support for these amendments is to improve rather than diminish the practicability and effectiveness of this clause. It is the view of the Law Society that the amendments that have been moved are likely to be more realistic in the circumstances. As the Law Society has contended, the crucial matter is that justice should be done and be seen to be done. Speed is significant, but it is not the whole argument. For that reason, I support the proposal of 10 working days.
The time limit is in many cases impracticable, and it will have the unfortunate consequence of persuading more applicants to apply to the court for an extension of the statutory time limit. The essential issue is that the case ought to be properly prepared and presented; that cannot be done in five working days. I speak from some experience as far as this provision is concerned, both direct and indirect. We are talking about people's right to present their case properly. There have been many incidences of this concern in practice.
The amendment is supported by the Law Society for the reasons that I have elaborated. As I understand it, the Law Society has explained its purpose to Ministers. What have Ministers said to the Law Society in response? The House is entitled to know. After all, the Law Society is concerned—as is the Bar Council—to make these provisions practicable and enforceable. I hope, notwithstanding the initial response, that my noble friend will have second thoughts about this important matter.
My Lords, I rise to speak only briefly, reminding the House, as I did when I spoke in the original debate on the ouster clause, that I am chairman of the Council on Tribunals, which I hope may be seen as a qualifying interest, rather than a disqualifying interest in this context.
Looking carefully in the direction of the Minister, I wish to express my support—and I think I can safely say the support of the Council on Tribunals—for some extension of this five-day rule. Like everyone else, we focused our principal attention on the original ouster clause, and share the gratitude of all that it has disappeared in its original form.
However, this was one of the various points of detail on which we had focused. I can only say that we believe—I certainly do—that five days is much too short a period to obtain proper advice about applying for a review and help in preparing it, and much too short a period for an appellant with no means of obtaining advice or assistance. In general, there is a risk that this would run contrary to what we would all agree, however difficult the problem, should be an open and proportionate system of review.
I do not think that I need to say more, but I hope that we shall receive a positive response from the Minister. Whether 10 days is the right figure is not a matter that I would want to die in a ditch on, but I am clear that five days is too little. I hope that the Government will be prepared to look at this again.
My Lords, I support the amendment standing in the name of the noble Lord, Lord Goodhart. I am grateful for some of the changes that the Government have made in Clause 14. They have gone some way to satisfying some of the objections that some of us have had. In my view, they have not yet gone far enough. I am particularly bothered about the five-day limit. I do not believe that it is workable. A much-respected immigration solicitor in the city of Newcastle, where I live and work, says that she spends some 20 hours preparing a case with a client. She believes that her job will no longer be viable if these regulations are to come in. In an asylum system that anyway is operating with a culture of disbelief, how on earth will vulnerable people be able fully and effectively to put forward their evidence within those five working days of the notification of the decision?
Grounds of appeal prepared in great haste do not give the best material on which to make difficult decisions. The five-day limit is not a proposal for a fair system, let alone an effective one. Therefore, I strongly support this amendment in the name of the noble Lord, Lord Goodhart.
My Lords, I am glad that the right reverend Prelate has raised the question of the time that is required to obtain the legal advice that is necessary, because this is a matter that has been raised with all your Lordships by the Refugee Children's Consortium. It says that this is a universal problem. It is not just the particular adviser who has informed the right reverend Prelate of this problem; all advisers are in the same boat. They already must spend a great deal of time accessing legal advice on behalf of their clients, and these regulations will make life almost impossible.
In the representation that the consortium has made to your Lordships, it says that its staff already spend hours on the telephone seeking a legal representative, or to make an appointment with a legal representative. The first lawyer that they approach many not be willing to take the case on, and there may be several iterations of the calls. The original lawyer who dealt with the case at an earlier stage may not be prepared to act in this instance.
It is almost universally agreed that the time limit of five days is impossible. It was referred to particularly in the JCHR sixth report of session 2003–04, which says that,
"the UNHCR has expressed the same concern about the five day limit and the likelihood that it may result in . . . contravention of the fundamental principle of non-refoulement in Article 33 of the 1951 Convention Relating to the Status of Refugees".
They say that it falls short of international standards of fairness, while seriously compromising the ability of asylum applicants to access their rights of appeal. Faced with this barrage of opinion from all quarters, I cannot imagine that the Home Office will stick with its original decision. It must bow to the weight of professional and legal opinion and make the concession that my noble friend has asked for.
My Lords, may I remind noble Lords of my interest in this subject? I am a lay member—currently an endangered species—of the Immigration Appeal Tribunal. I support the noble Lord, Lord Goodhart, and all the other noble Lords who have spoken in favour of this amendment. Already the number of lawyers who are registered as being allowed to represent asylum seekers is limited and, from my own knowledge, they are extremely hard-working and hard-worked individuals. If they are not given time to prepare a case properly it is going to defeat the objective of this Bill, which is to speed up decision-making, so I offer my support.
My Lords, I intervene as a member of the Joint Human Rights Committee, whose report the noble Lord, Lord Avebury, has just mentioned. The Committee deliberated long and hard about the new clause and all its various ramifications, and we looked at a great deal of evidence. I remind noble Lords, with their indulgence, of precisely what the Committee said on page 21 of its recent report; it is pretty categorical. It stated:
"We consider the five day time limit to be far too short for the right of access to the High Court and beyond to be practically effective. The number of tasks to be performed between receipt of a decision and lodging an application for a review makes it simply impracticable to require applications to be lodged within five days. An application for reconsideration will require the applicant's legal representative to receive a copy of the Tribunal's decision, to read and consider it, to marshal any necessary evidence (which may require a meeting with the applicant at which an interpreter might well be required), to draft the legal grounds of challenge, and to lodge the application at the High Court. We consider that, more often than not, completing all these steps within a five day time limit will be a physical impossibility for most asylum seekers".
We come to the conclusion that this provision may in effect impede the idea of a right of access to the higher courts.
My Lords, it is obviously desirable that any time limit should be fair, but it is even more important that it is practical. If it fails in that, there is a real risk it will defeat itself, and there will come before the necessary authorities something that may be looked upon as half-baked. To bake it properly will waste time, which will be due entirely to the defect that has been pointed out. The offer to increase the five days by another five is an extremely reasonable and sensible approach, which involves the Government in no cost of any significance.
My Lords, so many of your Lordships have spoken to the same effect on this amendment that I have little to add. We have added our name to the amendment moved by the noble Lord, Lord Goodhart, and so your Lordships would naturally expect me to support it, which I happily do.
We on these Benches have always been opposed to the five-day period for the reasons that the noble Lord, Lord Goodhart, and others of your Lordships have so eloquently expressed. In an amendment tabled in Committee, we suggested a seven-day limit. However, that suggestion was based on a number of assumptions about the rest of the Bill that no longer apply, of which I shall mention just two. The current appeals rules—that is, the rules of 2003—allow for the interests of justice to be taken into account when considering an extension of time. That provision is in paragraph (2) of Rule 16. We should contrast that with the test for extension of time found in Clause 14(6), which sets out the terms of subsection (4)(b) of new Clause 103A. The test is expressed thus:
"the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3)"— in this case, it is five days—
"where it thinks that the application could not reasonably practicably have been made within that period".
I am sure that your Lordships will agree that that is a much more severe test for the applicant than the test under the existing rules.
Our second reason for supporting the noble Lord, Lord Goodhart, is that our suggestion—seven days—also assumed that oral hearings would be permitted in the review, where they were considered by the High Court judge to be in the interests of justice. In the absence of the ability to make such oral submissions, the quality of written submissions and their degree of comprehensiveness must be very high. We do not see how that can be achieved within the short period of five days.
For those reasons and for others that have been amply expressed by your Lordships, we support the amendment moved by the noble Lord, Lord Goodhart.
My Lords, in responding to the many noble Lords who have spoken to the amendments, I thank those who paid tribute to the fact that the Government have listened to representations made in this House and elsewhere. That is appreciated. As a consequence, we have crafted a system that still enables us to achieve the essential thrust of the policy, while listening to the concerns that have been raised.
Amendments Nos. 43, 44 and 59 would extend the time limit for making a review application and for opting in under the transitional provisions from five working days to 10 working days. As the House knows, we wish to make the review process as swift but as fair as possible. We are confident that, in practice, five working days allows an appellant sufficient time to consult a legal representative and lodge the application papers for a review. It should also allow sufficient time for an applicant to opt for the review application to be looked at by the High Court under the transitional provisions in Schedule 2.
I shall explain why we have come to that view. It is important to remember that we are not talking about the appeal against the initial decision by the Secretary of State or entry clearance officer. The review is a process that we will put in place to allow a tribunal decision to be reconsidered, if there may have been an error of law by the tribunal that affected the tribunal appeal determination. In those circumstances, the shorter time limit of five working days best achieves the balance between speed and fairness.
The reason why we believe that the timetable is practical is that the grounds for appeal will already have been covered at the appeal before the tribunal. There will have been a clear statement of reasons for the appeal that will focus the appeal on the key points at the hearing. The process is not a rehearing of the case requiring new grounds but a process to allow errors of law by the tribunal to be corrected, if it affected the original appeal decision. That should not be over-onerous on the legal representative, as, first, the legal representative should already be familiar with the case through the earlier work on the appeal and, possibly, the initial claim to IND. Secondly, the kind of issues that we are talking about with regard to an "error of law" should be familiar to the lawyers from their experience of judicial review and statutory review. If there is a genuine exceptional reason why the application could not be made in five days, it is down to the judge to decide whether to allow a late application.
The noble Lord, Lord Kingsland, explained as elegantly as one would expect why he has moved from supporting a seven-day timetable to supporting one of 10 working days. When my noble and learned friend the Lord Chancellor announced at Second Reading that we would introduce measures to provide for oversight by the higher courts, he stressed that we would balance them with the aims of speed and reduction of abuse. We must bear those objectives in mind at the same time. It is important to ensure that there is a fast, end-to-end process. It is not in the interests of genuine appellants to drag out the appeal process. Shorter time limits would help to dissuade people from abusing the process or wrongly believing that they can.
My Lords, I am grateful for the Minister giving way so courteously. I understand his point about expedition, which was made by the noble and learned Lord the Lord Chancellor at an earlier stage. But does it not fit ill with the refusal of the Government to include in the Bill either a limitation period for the period between the asylum application and the application decision by the Home Office or the additional refusal of the Minister or the Home Office to accept any time limitation between the end of the statutory review process and the moment of deportation? What relevance has five days within the appeal process if the Government have dug their heels in on those other periods, which often amount to years?
My Lords, I shall now relay the remarkable reduction in the overall speed of decision making that has taken place on asylum and immigration matters since 1997. I am sure that the noble Lord, Lord Kingsland, is well aware of the significant overall reduction. We are debating the specific time limit of the appeal in order to see whether we have allowed a process that gives an appellant an adequate time in which to put forward his or her case. With the leave of the noble Lord, I shall continue my explanation about why we believe that we have got it pitched right.
As I have said, we accept that there will be exceptional circumstances when, for reasons outside the control of the applicant and his or her representative, it will not be possible to lodge an application within the five-day time limit. The Bill recognises that and makes provision for applications to be accepted out of time in those circumstances. The discretion in doing so will rest not with the Government but with the High Court judge who is considering the issue.
Amendments Nos. 51 and 52 would make the order-making power to vary the time limits subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee scrutinised the order-making and regulation-making powers in Clause 14 and published its recommendations in its 15th report of this Session. The committee recommended that regulation-making powers under Section 103D of the 2002 Act, which concern new legal aid arrangements, should be subject to the affirmative resolution procedure. I have brought forward an amendment to give effect to that recommendation.
However, the committee did not recommend that the order-making power to vary time limits should be subject to the affirmative resolution procedure. If the order-making power is used, both Houses would have the opportunity to give detailed consideration to the order. If they felt it necessary, they could of course pray against it.
Perhaps I may turn to some of the specific points—
My Lords, I am much obliged to my noble friend the Minister for giving way. I am sure that he has had an adequate opportunity to advance all those arguments to the Law Society, the Bar Council and others, but would he care to mention who supports the Government where this is concerned? After all, the House is entitled to know that. When my noble friend advanced those arguments to the powers that be, what was their response?
My Lords, I was not privileged to be privy to all of those discussions with the relevant professional bodies. In response to the question about who supports the attempt of the Government to ensure that we uphold our traditions in this society of giving fair and proper consideration to people who apply to us for refuge and asylum, the public are clear that they want government and society generally to ensure that the abuse in the system is stamped out. There is strong support for that position, not just—how shall I put it?—among the more extreme elements of the popular press, but also among those who hold dear the tradition of this society, and its responsibilities, to consider applicants for asylum. That is my answer to my noble friend.
My Lords, I am much obliged. It is astonishing to say that to extend the time limit from five to 10 working days is extreme. I do not believe that. What I said at the beginning is wholly true. I want to make these considerations workable and practical. Nothing that my noble friend has said draws me to an opposite conclusion.
My Lords, I have no doubt that that is the thrust of my noble friend's intention on this measure, as it has been on many asylum and immigration matters. I am saddened that I have not managed to persuade him at this point.
Perhaps I may turn to a number of points that were raised in discussion. The noble Lord, Lord Goodhart, raised the important issue of deemed service. The five days starts two days after the issue of the notice of decision from the AIT. Therefore, for very good reasons, it is effective not from the date of being sent out but from two days after that date. The last day of deemed service would not overlap with the first day of the five-day application period. We will ensure that that is done and set out in the rules.
The noble Lord, Lord Avebury, also referred to the UNHCR disapproving of the five-day limit. The UNHCR comment relating to a five-day limit refers to filing an asylum claim. We are not referring to that in these measures, but to a subsequent time limit for seeking a review and reconsideration.
We do not wish to ignore the representations of the House, but we have given the issue very careful consideration. In the vast majority of cases, an asylum applicant will have had a lawyer at the original asylum and immigration tribunal hearing. In many cases, during the hearing, the points of law on which it seems likely that the tribunal's determination will turn and hinge will be identified, so the lawyer and the applicant will not come cold to the thrust of the likely decision by the tribunal. Therefore, in most cases, a lawyer and his client would have been in a position to have discussed whether, if the hearing did go against them, they would wish to lodge an appeal. Often, the lawyer would be well prepared about what should be the thrust of the case that he or she would put before the High Court when seeking an ex parte application.
Therefore, for those reasons, we think that five days is workable. However, that should be cautioned, of course, by the fact that there is a discretion for the High Court judge to waive that when he or she thinks that the interests of justice require it.
My Lords, I am most grateful to the noble Lord. My quotation from the UNHCR was not direct, but it came from paragraph 1.81 of the 6th report of the JCHR. That was in the context of the shortness of the time limit for applying to the High Court for a reconsideration. It was not in terms of the first application at all. If the noble Lord refers to the JCHR report, he will find that my quotation was relevant to this discussion.
My Lords, I thank the noble Lord, Lord Avebury, for his correction.
My Lords, the Government have said that their objective is to have a procedure that is swift but fair. We agree with that objective. Unfortunately, the Government's proposals, while plainly swift in this respect, are blatantly unfair. The Government say that they are confident that an appellant will have sufficient time because—so they say—the grounds for appeal will already have been covered in the argument at the first hearing before the asylum and immigration tribunal.
The idea that the judgment of the tribunal is so predicable that, in effect, it is possible to draft a notice of appeal in advance is utterly unrealistic, as, I believe, anyone who has practised in the courts will agree. Many speakers in this debate have said that a five-day period is utterly impracticable. The five days' limit will be only a very minor factor in extending the time before the removal ultimately of an unsuccessful asylum seeker. The five days' limit will be a major factor in creating unfairness in the system.
I am most grateful for all the support that this amendment has received from all parts of your Lordships' House. The amendment echoes the views of the highly respected Joint Committee on Human Rights. In those circumstances, it is proper for me to seek the opinion of the House.
My Lords, I hope to be quite brief. It is undesirable that, where reconsideration is ordered because an error of law may have been made, the case should be referred back to the same member of the tribunal who made the original decision to decide whether in fact he or she got it wrong the first time round. There may be exceptional cases where it is legitimate, but they are few and far between. It is also usually desirable that, where an error of law may have been made, the case should be reconsidered by a panel of three rather than by a panel of one.
It is true that under Schedule 5 to the 2002 Act the president of the asylum and immigration tribunal will have power to direct, where in his view it may be appropriate, that the case should be reconsidered by a different member of the tribunal from the original one or should be reconsidered by a panel of a different size. But it seems appropriate that the judge of the High Court or whichever is the appropriate court in Scotland or Northern Ireland who has actually heard the application and is therefore aware of the issues involved should have power not only to direct a reconsideration on the grounds of an error of law, but also to decide on the form of tribunal which is to hear that reconsideration.
I do not suggest that the judge should be bound to exercise the power, but in cases of this kind it would be appropriate for the judge, if he or she has clearly decided that it cannot go back to the person who made the original decision, to decide there and then who is to hear the reconsideration. I beg to move.
My Lords, I apologise. The noble and learned Lord is quite right. The amendments are grouped together, but Amendment No. 46 is the substantial amendment. Amendment No. 45 suggests a minor point to make it clear that this provision should apply to both parties of the tribunal, not only to an appellant.
My Lords, will the noble Lord assist me on one point? Since the emphasis of the whole of this part of the Bill is on expedition, and since we are dealing with a point of law and a tribunal which is a qualified judge, why should not the judge himself make the decision that there was an error of law and the consequences are as would be appropriate? Why would it need to go back in every case?
My Lords, I am pleased to be able to help the noble and learned Lord, Lord Ackner. I am sorry if what I said was confusing, but the purpose of this amendment is exactly that: it is to make sure that the judge who hears the application for an order for reconsideration should be able himself or herself to say, on the spot, "We need not bother the president of the asylum and immigration tribunal. I myself am convinced that this is a case which should not go back to the member of the tribunal who took the original decision. The issue is so important that it requires a panel of three". So I am grateful to the noble and learned Lord, with whom I think I am in entire agreement.
My Lords, pages 1 and 2 of the Marshalled List state:
"An order . . . may direct that the decision of the Tribunal may be reconsidered by—
(a) a member who made the decision;
(b) another member; or
(c) a panel of 3 members".
Why should it be necessary to insert a provision for three members if one member is enough? I should be grateful if the noble Lord could help me on this point.
My Lords, I am grateful to the noble Lord. There is an existing power for the president to declare that a case is sufficiently important to require it to be heard by more than one member of the panel. Therefore, if the judge is to be given a choice, he or she should be given the same choice as the president would have, which would include the power to direct that the case should be heard by a panel of three members.
Three members seems the right number here. Two members would be unsatisfactory, as even numbers tend to be when taking judicial decisions, and rising to five members would be to over-egg the pudding.
My Lords, Members on these Benches support the amendments tabled by the noble Lord, Lord Goodhart, save for one qualification. The noble Lord will see that Amendment No. 57A would require three members to be the normal number to sit on the tribunal,
"unless the President from time to time directs".
Were that amendment ultimately to find itself included on the face of the Bill, I suggest that a slight modification would need to be made in Amendment No. 46 to new subsection (5A)(a) and (c). Subsection (5A) would have to read, "member or members who made the decision", while (c) ought to read, "or another panel of 3 members". However, the changes would be necessary only if the contents of Amendment No. 57A were to find their way into the Bill. I apologise to the noble Lord for not drawing his attention to this point earlier.
I had proposed to say a few words about Amendment No. 45, because I am not sure of the Government's attitude towards this amendment. I assume that, for the sake of brevity, they would want to have the case decided without the necessity of inviting the respondent to make representations. I think that Amendment No. 45 implies a right, or at least a power, to require representations from the other parties to the appeal.
The point made by the noble and learned Lord, Lord Ackner, seemed to be that, if it is apparent that there has been an error of law, the simplest way to correct it is perhaps to make a new decision immediately which has the opposite effect. The problem about that is, unless and until the basic opening of the clause is changed, the only power in the court is to remit the case to the tribunal. If the point made by my noble and learned friend were to be given effect, some further amendment would therefore be required. I do not think that Amendment No. 46, moved by the noble Lord, Lord Goodhart, would have that effect.
So far as Amendment No. 46 is concerned, for my part I would be willing to take it that the judge hearing the case in the High Court would have these powers in any event. If there is any doubt about that, however, I see no reason why these amendments should not be made.
My Lords, if on review the judge decides that there has been an error of law, I do not think that it follows that the lower tribunal, with one or three members, would necessarily reach a particular conclusion. For instance, if the decision is that an irrelevant matter has been taken into account, it still leaves open the question of what happens when the relevant matter is taken into account. On the face of it, that would not be a matter for the High Court judge.
While judges are perfectly capable, when looking at a decision which overturns their own decision, of saying, "That is what that court says"—they probably got it wrong, but that is beside the point—"They have the last word, so of course I will follow it". We know, or at any rate those who are involved in the law know, that that is so, but the lay public do not. If there is a situation in which a decision is sent back to the original member, who then says, "Having taken account of the guidance I have received from the High Court, I still think that the answer is what I said it was", it is probably a perfectly possible answer but it is not one which would carry conviction with the public.
It would therefore be important that the judge of the High Court should consider very carefully before sending it back to the same member as had it in the first place—unless he is quite satisfied that the answer will be a different one.
My Lords, there are occasions when it is appropriate to send it back to the person who made the decision in the first place. Sometimes that person will not have taken all matters into consideration and will need to be reminded that this should have been done and, if he had taken all matters into consideration, what then would have been his decision.
On the other hand, in most of the cases that have been through my hands, when it has been sent back to a lower level for a rehearing, it has been to a fresh hearing as opposed to a filling-in of what has already been heard. There is therefore room for both cases.
My Lords, in responding to an interesting debate, it may be helpful if I start by emphasising what the Government are seeking to do under Clause 14 in this respect.
Essentially, and for reasons which will be well known to the House, we think that there is a need for and merit in a single process in the new Asylum and Immigration Tribunal to deal with issues, rather than a second two-stage process. However, the House and others have made representations to us that the ouster of judicial review went too far and did not allow an adequate supervision by the higher courts of points of law or failures by the tribunal.
Therefore, in the amended Clause 14 we are seeking to ensure that the single-tier tribunal, the AIT, has the capacity, skills and competence to deal with these issues, but allow an opportunity, when there appears to have been a case where there is an error in law, for that to be considered by a higher court, normally the High Court and, if the judge hearing that case believes that an error in law has been made, to send that back for reconsideration.
We are not trying to reconstruct a two-tier process built on the AIT—for very good reasons, because that would in large part take us back to where we are at present.
That is why we are not sympathetic to Amendment No. 45. The noble Lord, Lord Goodhart, suggests a requirement for the High Court or Court of Session to determine review applications by reference to the written submissions of all parties to the appeal, and not only the written submissions of the applicant. That effectively puts the High Court—if the High Court is hearing it—in the position of deciding on the substance of it. That is not what we want to do, and for good reason.
It is important to recognise that new Section 103A has been drafted to reflect the fact that the review procedure will be ex parte: in other words, if a person who has agreed with the decision of the AIT has an opportunity to direct to a higher court a challenge that there has been an error of law by the AIT, and if the judge in that case is persuaded by that to direct a reconsideration.
The current permission stage to the AIT and the statutory review procedure under Section 101 of the 2002 Act, for similar reasons, are both ex parte and we think that it is necessary and right to continue with this.
Requiring the High Court to determine review applications by reference to the written submissions of all parties to the appeal would effectively put it in the position of determining the appeal, would add delay to the process, and is unnecessary.
It is also undesirable for other reasons. One of the problems experienced has been that the High Court has been swamped by appeal applications of this type. That has put an inappropriate burden on the High Court. Therefore, the procedure as crafted by new Section 103A allows for the proper exercise of High Court supervision on points of law, but does not take away from the specialist tribunal the reconsideration of those matters. In other words, it has been carefully crafted—we believe for good reason.
If the High Court or a senior member of the tribunal considers that there may have been an error of law and orders a case to be reconsidered by the tribunal, at that point all parties to the appeal will have the opportunity to make written and, if appropriate, oral representations. We therefore believe that the provision is well constructed. The substantial hearing, if there has been a finding on a point of law, is back into the tribunal following the determination by the High Court judge.
Amendments Nos. 46 and 57 will enable the High Court or the Court of Session to direct how the tribunal should be composed when it reconsiders an appeal. As it stands, the president of the AIT will direct the composition of the tribunal under paragraphs 7 and 8 of Schedule 1 of the Bill. We believe that is where that discretion should lie.
We agree that the reconsideration process will need to vary. Some appeals will be best reconsidered by a full hearing but, for others, this may not be necessary. Some appeals will require a panel of judges to hear them, because it is seen by the president as potentially a pivotal case that will set a precedent relevant to other cases. In such circumstances one would expect that there would be three judges in the AIT hearing such a case. In other cases it will not be so, and therefore we believe that the president should take into account any recommendations made by the High Court or Court of Session but should have the discretion within that to make a determination on how best the appeal should be reconsidered in the AIT, depending on the particular circumstances. Ultimately, the president is best placed to take these decisions on the deployment of judiciary within the tribunal.
This has been a helpful debate. I do not think that I have replied to the point made by the noble and learned Lord, Lord Ackner, as to why the High Court should not be given the power to reverse. I may have done so in passing, because I have signalled that it is a different function for the High Court. It is not to hear the substance but to hear whether it considers that an error in law has been made. As the noble and learned Lord, Lord Donaldson, helpfully signalled, that does not imply that in every single case—even where an error of law may have occurred—the reconsideration decision will automatically be reversed. It will depend on the circumstances of the case.
I hope that my comments have been helpful to noble Lords who have spoken to the amendment.
My Lords, I am not wholly unsympathetic to the Government's view. I do not think that it would be appropriate for the judge to turn what is, in effect, an application for leave to appeal into a substantive hearing. I understand that and the amendment was not intended to achieve it.
Although the Government have taken some care to avoid saying so, they are trying to create an internal appeal system within the tribunal itself in which, if the case arises in England, the judge of the High Court effectively gives leave to appeal from one part of the tribunal to another panel or individual within the tribunal. It is a fairly ingenious way of handling the issue. From the Government's point of view it has the advantage that, albeit the leave to appeal—if one can call it that—is given as part of the jurisdiction of the High Court, it is not in itself subject to judicial review.
Amendment No. 46 would save time because a judge could say, "Having looked at this matter on an ex parte basis, it seems to me that there is plainly something that needs to be looked at seriously". That would avoid the delay involved in having to refer the papers to the president of the tribunal and he or she having to read up the papers and come to a decision as to what is the appropriate form of the tribunal.
However, I am also aware that, unlike the previous group of amendments, a refusal to accept these amendments will not lead to any injustice in the procedure. In those circumstances, I do not wish to press them further. I beg leave to withdraw the amendment.
moved Amendment No. 46A:
Page 15, line 42, leave out from beginning to "applies" in line 43 and insert—
"103D RECONSIDERATION: LEGAL AID (1) Subsection (2) applies where the appropriate court has made an order under section 103A(1), or a reference under section 103C(1), on the application of an appellant under section 103A. (2) The appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22). (3) Subsection (4)"
On Question, amendment agreed to.
My Lords, I was expecting a slightly more substantial speech from the Minister. However, I am happy that he should leave that until he responds to this amendment, which is grouped with Amendment No. 46A.
We do not object to Amendment No. 46A and have not sought to do so; we welcome it so far as it goes. It will undoubtedly fill a lacuna if it gives the court which hears an application for an order to reconsider the power to order the payment of the costs of that application. The problem is that Amendment No. 46A does not go nearly far enough.
Once the High Court has ordered reconsideration, it seems plain to us that legal aid should be granted for that reconsideration. The High Court will not order reconsideration unless there is at least an arguable case that there has been an error of law; nor will it order reconsideration if it is apparent that that error of law makes no difference because the case is hopeless on the basis of the facts or on some other legal issue.
However, we believe that it is essential that the appellant's lawyer should know that if the case is reconsidered, he or she will receive legal aid for appearing in the case. Of course, if the lawyer in some way misconducted himself or herself by misleading the court and concealing material facts, he or she would be deprived of the right to legal aid anyway. But the Government are suggesting, basically, the extension of no win/no fee litigation to asylum and immigration cases.
No win/no fee funding may be here to stay for civil actions for damages—that is an entirely different matter—but it is completely inappropriate for litigation of this kind between an immigrant and the state, with terrible potential damage to the immigrant if he or she is wrongly sent home. I was horrified by the noble and learned Lord the Lord Chancellor's suggestion in Committee that "success fees"—that is, an uprating of the fees that would be otherwise due—could be paid where a decision is overturned on reconsideration. If an application is strong enough to justify an order for reconsideration, the appellant is entitled as a matter of justice to have the case presented by a lawyer who has been paid to do the job.
Amendments Nos. 47, 48, 48A, 49 and 50 tackle this issue in two different ways: one way is through Amendment No. 47; the other way is through the remainder of the amendments. Amendment No. 47 seeks to remove the whole of the new Section 103D of the 2002 Act. Its purpose is to ensure that legal aid for applications and reconsiderations should be provided in the normal way, with none of the special restrictions imposed by the Bill.
Amendment No. 48 is something of a compromise. It would retain new Section 103D but require the tribunal to make an order for legal aid unless it is satisfied that there were no reasonable grounds for making the application. It would eliminate all the issues we discussed in Committee about near misses. A lawyer with reasonable grounds for making the application would not lose his or her fees on the grounds that the miss was not quite near enough.
Amendment No. 48A would require the tribunal to give reasons for refusing legal aid. If those reasons were irrational, the decision could be reversed. Amendments Nos. 49 and 50 back up Amendment No. 48. They would remove the provisions for payment by results.
We believe that the test—and the only test—for the grant of legal aid should be whether there are reasonable grounds for seeking reconsideration. If there are reasonable grounds, it would be wrong to deprive the appellant's lawyers of the fees because they are unsuccessful when the reconsideration takes place.
I find the attitude of the Government to legal aid in these cases extraordinary. They have failed to take into account measures that have already been put in place to curb the abuse of legal aid, which I recognise has happened in asylum cases. Such measures include the fact that decisions on appeal funding have been taken in-house by the Legal Services Commission since last April; the fact that nearly 100 poor-quality firms have had their Legal Services Commission contracts terminated; and the fact that a compulsory accreditation scheme of the Law Society will come into force in April of next year. Those measures are surely sufficient to justify treating legal aid for leave of appeal to the AIT in the same way as any other cases and for hearings for reconsideration.
The Government have not so far said that criminal defence lawyers will be paid only in cases where their clients are acquitted, yet the wrongful refusal of asylum can have consequences even more damaging than a wrongful conviction for crime.
The way in which the Government have treated the right to legal aid in this case is plainly wrong and it needs fundamental alteration. I beg to move.
My Lords, like the noble Lord, Lord Goodhart, I am deeply concerned about this issue. I am concerned about the principle to introduce, in due course, the no win, no fee arrangements. The noble Lord elaborated on that.
The Government have it in mind to replace the Legal Services Commission with the judiciary in determining whether costs should be ordered. The judge would so order only if he decided that a case was either successful or a near-miss. Solicitors are therefore bound to be unduly cautious in approaching such matters.
The system that is envisaged is likely to have deleterious effects. First, solicitors are likely to give up legal aid work in that field because they feel that they are unable to work at all, or properly, under the circumstances that are envisaged. Secondly, there is a by no means remote possibility of a conflict of interest between the lawyer, whose attitude is likely to be that he will act only if the application is almost certain to succeed, and the lay client, who will want the application to proceed if he has an arguable case. Why, therefore, should there not be representation in all arguable cases?
Unmeritorious cases should not be publicly funded. I entirely agree with that proposition. That, in summary, is the view of the Government. However, do the Government not recognise that effective filters already exist? First, there is the Legal Services Commission, which imposes cost assessment audits, Quality Mark audits and peer review, where firms undertake immigration work, which is publicly funded. Secondly, the Legal Services Commission, rather than the solicitor, determines at present whether the case has enough merit and whether an appeal to the Asylum and Immigration Tribunal should be publicly funded. Thirdly, from 2005, the accreditation system will apply to all lawyers who practise publicly funded work in such cases.
Complex issues of law and fact are the rule rather than the exception. To decide them, it is often desirable that the applicant should give evidence. Why should we find that unacceptable?
Many sound claims are too often refused at the initial stage, where Home Office decision-making is often found to be wanting. Representation at that stage is therefore often indispensable.
There is likely to be an increase in unrepresented applicants, however unmeritorious they may be, and the courts will be hopelessly overloaded. In such circumstances, the Government will incur, rather than save, costs. I therefore hope that my noble friend will think again about his propositions.
My Lords, I indicated earlier that when the Council on Tribunals looked at some of the proposals, though it concentrated on Ulster in particular, it was concerned by a number of points of detail. This is another of them.
I shall not attempt to speak with the eloquence of the noble Lord, Lord Clinton-Davis, with his much wider knowledge of the operations of the legal profession, but it seems to be a matter of layman's common sense that if public funding is to be dependent on the ultimate outcome, which is what appears to be envisaged, there must be a risk that lawyers will feel strongly discouraged from taking on cases that may be meritorious in the normal use of that term, but not 100 per cent certain of being meritorious. In the area of asylum and immigration, it is singularly open to question whether that is a proper path to follow.
Being a natural seeker after the middle way, of the two amendments moved by the noble Lord, Lord Goodhart, I think that I prefer his compromise amendments to his complete "throw out this bit of the Bill" amendment, but I hope that the Government will look again at the issue.
From our experience at the Council on Tribunals—as was touched on by the noble Lord, Lord Clinton-Davis—there is considerable evidence that suggests that the absence of legal representation can extend the time and complexity of the hearing and make it much more difficult to handle matters in a manageable way. Any former Member of Parliament will know from discussions in his surgery that many complainants, claimants or applicants often find it difficult to distinguish the points that really matter from those that are not necessarily essential to the issue. Legal representation really can improve the smoothness and efficiency of the working of arrangements of that kind. With the best will in the world, I hope that the Minister will be prepared to take another look at the matter.
My Lords, I too wish to ask the Government to give further consideration to these matters. They are of concern to all those noble Lords who have spoken today. While I am pleased that the Government have amended their proposals to allow for costs to be paid out of the Community Legal Service fund, I would like some reassurances about how that is going to work out in practice, especially in cases involving children and families.
A no win, no fee approach puts children and families at risk from the unscrupulous or the faint-hearted, who may tell them that they do not have a strong enough case to take on, and that if they want to appeal, they must pay privately. It is worrying to find a child or a family being told to produce a significant sum. The Children's Society has experience of upfront payments of £200 being demanded from a child, to be produced in a short space of time, before a case would be taken on.
My Lords, I am sorry to interrupt, but would the noble Lords on the Benches opposite mind confining their sub-committee to outside the Chamber? I am finding it difficult to hear what the right reverend Prelate is saying.
My Lords, equally it is becoming difficult to find good legal representatives for children and families. We need to remember that the best protection against incompetence or unscrupulousness is a sufficiency of good representatives. I am not at all sure that these proposals will enable that.
My other concern is about a no-win/no-fee arrangement in this case. I am not aware of such a scheme operating in any other areas that are about fundamental human rights. That seems to be the basic point, which is why I fully support the amendment in the name of the noble Lord, Lord Goodhart.
My Lords, the right reverend Prelate is right. I do not think that any of us can produce an example where human rights are at stake and where a no-win/no-fee proposal has been made, let alone introduced. I wish to refer to the representations that we and perhaps other noble Lords have received from the Medical Foundation for the Care of Victims of Torture. It says:
"Where torture has been alleged it cannot possibly be in the interests of justice to allow the decision to challenge a flawed Asylum and Immigration Tribunal (AIT) decision to rest on lawyers' financial interests in the success of the case. This will prejudice those of our patients whose representatives are less able to bear the financial risk of proceeding even where a legal error of law is clear. This is particularly relevant given the Medical Foundation's current experience that quality firms are closing their immigration departments due to the recently imposed financial constraints".
The Medical Foundation has drawn our attention to two cases. I will give the Minister the references in case he wants to look them up. The first is Neutral Citation No: CO–2174–00, which was heard on
The second example is where a chairman of the tribunal determined an application for permission to appeal. The appeal number is HX/42009/2003, which took place on
"An adjudicator is entitled to use his own experience in assessing evidence, including how scars might be formed but not to set himself up as an expert".
In that case a decision is still awaited, but it is not clear how an adjudicator would come to have the experience necessary to make a forensic judgment, nor the extent of that particular adjudicator's medical knowledge, although he was permitted to attack the Medical Foundation expert who had written the report before him for failing adequately to explain her conclusion.
The Medical Foundation says that it cannot predict whether those two cases would have been successful under the Bill's terms or how the courts would have made a decision on referring them back. It shows that no-win/no-fee is a gamble and that, although there are serious doubts about the way in which such cases were decided, no one has any idea whether the applicants would have had the right to pursue their claims if this system had been in operation.
With the Medical Foundation's experience and that of other agencies referred to, we are looking at a situation where the rights of asylum applicants who may have had the experience of torture will be seriously undermined. I am sure that your Lordships would not want that to happen.
My Lords, as a Member of the House with no legal qualifications who has not been involved with the process, this seems to me a matter of simple common sense. I shall listen with great interest to what the Minister has to say if he does not accept the amendment's principle. The Law Society's case, which it put before many of your Lordships, was well made by the noble Lord, Lord Clinton-Davis. It seems common sense to me.
My noble friend Lord Newton from his experience of the Council on Tribunals made it clear that often an appeal is more complicated and takes longer if there is no lawyer involved. To have a situation where a lawyer may not dare to take on the case or may not want to because it seems too much of a gamble is a great mistake.
My Lords, we have considerable sympathy with the general approach of the noble Lord, Lord Goodhart, in the amendments that he proposes, without necessarily agreeing with the specific approach that he takes in each case.
I have already indicated that there is a plain dissonance between the test for review that the Government have now adopted in the first amendment of the day and the criteria for furnishing legal aid in circumstances where someone meets it. That is a profound and inexplicable irrationality that goes to the heart of the Government's legal aid proposals.
Moreover, I share entirely the view of the noble Lord, Lord Goodhart, and many other noble Lords, that a conditional fee approach is wholly inappropriate to asylum cases.
I should say at the outset that I am opposed to conditional fees altogether. I said so consistently during the debates in your Lordships' House on the Access to Justice Act 1999. However, the objections to conditional fees are even more firmly based with regard to public law; and, in particular, the human rights aspects of public law; and, especially, in asylum cases involving human rights issues.
There are a number of reasons for that, some of which have already been canvassed by noble Lords. The first is that the outcome in asylum cases is particularly difficult to predict because of the central role that the issue of credibility plays. Yet a high degree of accuracy of prediction is vital for the operation of a successful conditional fee system.
Secondly, in a conditional fee system, the client insures himself against losing a case so as to reimburse the solicitor for his expenses in the event of losing. An asylum seeker will be in no position to do that, but who will pay the insurance companies if they are not paid by the asylum seeker?
Perhaps the most fundamental objection of all is this: conditional fees are not appropriate to human rights cases, which require, as the judges have repeatedly reminded us in the High Court and above, the most anxious scrutiny. That, indeed, is the view taken to human rights issues with respect to every other public law matter in the country. In this respect, I find the Government's disposition particularly bewildering. They introduced the Human Rights Act to make Strasbourg remedies available in English law, in English courts; yet they are not now prepared to live up to these new responsibilities, which they imposed on themselves, by seeing them properly reflected in the legal aid system.
My Lords, in responding to amendments moved by the noble Lord, Lord Goodhart, I shall speak—and not before time—to government Amendments Nos. 46A, 47A, 48B, 49A, 50A and 58A. In doing so, I shall also respond to Amendments Nos. 47, 48, 48A, 49 and 50.
Amendments Nos. 47, 48, 48A, 49 and 50 are concerned with the provisions for new legal aid arrangements for the review and reconsideration process. Essentially, we are considering how to craft a new system that allows cases in which there are good grounds for there being a fault of law by the AIT to be properly considered by the High Court. We are not trying to reopen the situation, which I hope the House recognises took place, in which a substantial number of judicial review cases were brought on asylum matters to the courts without substantial merits, with the predominant aim of gaining time so that the asylum applicant whose case had not been found to have merit could defer his removal from this country.
We should not fool ourselves: this is not the dilemma with which we in a liberal society are trying to grapple. We want applicants in whose cases an error of law has been made to have an opportunity for redress in the higher courts; we have listened to the House in that respect. However, we do not want to reopen a situation in which there is an incentive for the applicant to continue the case, since it is in his interest to string out the process for as long as he possibly can, as that will delay or perhaps even avoid the date when he can be removed. We want as well to avoid the situation in which the lawyer himself is incentivised to take cases without merit because he will suffer no pain as a consequence of doing so.
While there have been cases that should have gone to judicial review—and it would be foolish of us not to recognise that—there have been very many cases without merit taken to judicial review, with considerable cost to the taxpayer and delay to the system. That has created the impression known to traffickers and others that when they get here the legal system in Britain—which is so good—means that they can string out their process and not be removed from the country. Therefore we are facing the question how we as a society, a Government and a House, can balance those two issues.
Let me explain why we believe that we have got it right.
My Lords, does the Minister agree that, considering the mechanisms that have been discussed by the noble Lord, Lord Clinton-Davis, and particularly the fact that the LSC will now have the responsibility of determining whether a case has sufficient merit, the kinds of abuse that have occurred in the past will still continue if legal aid is provided?
My Lords, the noble Lord, Lord Avebury, may have thought that I was concluding; I was not concluding but only beginning my response. I hope that we shall have an opportunity to address that point.
What we have done is to introduce an enabling power in new Section 103D to make regulations for a new legal aid scheme for the High Court review process and reconsideration by the tribunal. This will ensure that we focus legal aid on the most meritorious cases. Instead of the Legal Services Commission taking the funding decision, the power will be given to the judiciary to decide if legal aid should be paid in these proceedings. We are effectively asking lawyers to share the risk with the taxpayer when deciding whether an appellant should proceed with a review application. We believe that that will lead to lawyers giving a more rigorous examination to the prospects of a case succeeding. We recognise that good lawyers do that already, but that has not been universally the situation in our experience of asylum matters over recent years. This is not an attempt to remove those cases from the scope of legal aid, but a genuine drive to ensure that the focus of public funding is on deserving cases.
Amendments Nos. 47, 48, 48A, 49 and 50 would reverse that aim, and would mean that it would be easier to get legal aid for reconsideration proceedings than the original appeal, where the appellant would at least have to satisfy the merits test for legal aid applied by the Legal Services Commission.
As the Lord Chancellor said in Committee, the regulations constructed under the power will set out the detail of the scheme. Broadly speaking, we envisage that the tribunal will order legal aid to be paid in the following cases: in a case which has been successful and the original appeal decision has been reversed, or in a case which the judge has decided was a near miss, which was meritorious and could have succeeded but did not. In such a case it can decide that it is right that there is a payment.
I am grateful to the noble Lord, Lord Clinton-Davis, for acknowledging that unmeritorious cases should not be publicly funded. A number of noble Lords who have spoken have been concerned about whether the provision might lead to lawyers ceasing to be prepared to take cases to the High Court in these circumstances. That is a perfectly proper and right question. The thrust is that if lawyers get paid only when they succeed—and it is not perfectly possible to predict when they will succeed, for obvious reasons—they will be under a strong disincentive to take cases.
For those reasons—and with no hint of feeling that that is anything other than proper—we believe that a success fee should be paid and that it should be substantial. I shall not go into the exact arithmetic, because we have not come to a conclusion on that. What we want is a situation in which good immigration and asylum lawyers would know, in taking cases over a period of time, that if they exercise proper professional judgment in the interest of justice and their client—
My Lords, I cannot see why the Legal Services Commission should not apply the usual standards which are applied in considering particular circumstances. After all, at the present time the Legal Services Commission determines whether the applicant, plaintiff or defendant has a good legal case, and it can refuse or acknowledge that the matter ought to proceed. What is the essential difference between that situation and the one that applies in cases at the present time?
My Lords, I give an undertaking to the House that when I have finished what I have to say and if I have not addressed certain points, I shall be grateful to receive interventions. However, I hope that the House will have patience with me until we get to that point of failure rather than assuming that I am failing on it already.
I was seeking to explain why a success fee achieved the right balance in view of the fact that a lawyer would take on a level of risk on an individual case. The noble Lord, Lord Kingsland, is right that it is not like a conditional fee agreement, which involves an insurable risk, and that it is unlikely that the appellant himself would be in a position to reimburse the lawyer in the vast majority of such situations. It stands to reason that that is the situation.
We shall discuss the level of the success fee with the professions. Essentially we want to discuss what is likely to be the level of uplift on a fee that would ensure an adequate supply of good lawyers prepared to bring cases to review in this way. That is a consultation process that we cannot currently have, but it will be fundamental to crafting this accurately to get the balance right so that good lawyers will make judgments that they will take cases. They may lose on some but they will know that if they exercise good professional judgment they will get adequately remunerated over a period of time. We do not want a situation such as the current one, where bad lawyers will not be in any way limited from taking forward unmeritorious cases.
I turn to government Amendment No. 46A, in conjunction with government Amendments Nos. 47A. 48B, 49A and 50A. This enables regulations to be made under Section 103D to make provision for the High Court to order legal aid to be paid. In Committee, the noble and learned Lord the Lord Chancellor outlined this component of the proposals for new legal aid arrangements.
The High Court will also have the power to order the costs of an application under Section 103A to be paid if it orders the tribunal to reconsider its decision on an appeal or if it refers a case to the Court of Appeal. This proposal is important so that we can design the scheme flexibly. For example, if a case raises a question of law of such great importance that the High Court refers it to the Court of Appeal, it is appropriate that the High Court should have the power to order the costs of the review application to be paid. Government Amendments Nos. 47A, 48B, 49A and 50A are consequential to government Amendment No. 46A.
Government Amendment No. 58A makes the regulation-making power for new legal aid arrangements in Section 103D subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee recommended that the regulation-making power should be subject to affirmative resolution and in Committee the noble and learned Lord the Lord Chancellor said that he would bring forward an amendment to this effect.
I now turn to the question of the noble Lord, Lord Goodhart, about legal aid being paid only at reconsideration. The merits of a case will often come to light only when the case is fully tested and explored by the tribunal. The panel at the reconsideration will be best placed to order legal aid if a successful or near-miss application has been made. The High Court judge can order payment in exceptional circumstances.
The noble Lord, Lord Avebury, raised questions about the Medical Foundation cases. We are asking lawyers to focus on the fundamentals of cases and whether errors of law have affected the outcome of the cases. If they consider that a genuine case should succeed, they will be given legal aid if the case succeeds or is a near miss. As I signalled, the uplift mechanism will not deter them from taking cases that they consider have merit.
The noble Lord also spoke about no win, no fee costs being unprecedented for cases affecting human rights. It is already the position that conditional fee agreements are used in relation to judicial review proceedings, which frequently include issues of human rights. I should emphasise that we are talking about public funding only, not cases that are privately funded.
The noble Lord, Lord Clinton-Davis, and other noble Lords raised the question of why the LSC's applied merits test is not good enough. Any LSC-applied merits test will delay the review and reconsideration procedure. The test applied beforehand is hypothetical. We consider it entirely justifiable for the test to be applied by judges at the conclusion of cases. Judges are best placed to make a proper judgment on whether cases had merit because they succeeded or because they were close enough, or that there were other circumstances that they judge appropriate.
We are facing a real problem about how we get meritorious cases brought forward without over- incentivising the system so that cases without merit continue to be brought to appeal. I think that the way that we have crafted this after consultations is right, workable and will meet the test of justice.
My Lords, I am going to respond to the noble Lord's invitation to ask if there is a matter that does not appear to be covered.
As I understand Amendment No. 46A, these reconsideration of legal aid provisions apply only where the court has made an order of recommitment to the tribunal or to a higher court. It does not apply where the application has failed. It seems to apply only if the application for reconsideration has succeeded. Is that right?
Yes, my Lords. The noble and learned Lord is correct.
My Lords, I regard the Government's response to our amendments as deeply disappointing. I am also seriously concerned about some of the human rights implications. The Government are being illogical. They are not proposing to modify the present rules about the grant of legal aid for the first hearing before the tribunal. That is something that has undoubtedly been abused at certain times in the past, but I think that the Government recognise that, where a merits test is satisfied, it is necessary to grant legal aid for the first hearing before the tribunal. Of course, the number of first hearings is far larger than the number of appeals so that is the level at which the real cost is incurred and there will be no real saving on that from any of these amendments.
The Government are proposing to withdraw legal aid from only some cases of the making of an application and from cases of reconsidering following the making of an application where the application has been granted. We on these Benches are prepared to accept an amendment in a form that would mean that legal aid can legitimately be withheld in cases where there are no reasonable grounds for an application. What we find completely unacceptable is that legal aid should be withheld in cases were there is a reasonable ground for application, and not only withheld, but withheld retrospectively, at the end of the case, when the lawyer who has taken on the case has no guarantee whether that case is going to be successful.
The Minister referred to the need for more rigorous examination by lawyers. We are now facing a situation where a lawyer will have to say to himself or herself, "This case has a reasonable chance of success but it is not certain. I simply cannot afford to take that case without a guarantee of payment". Success fees are wholly inappropriate in order to deal with this situation. Success fees are about cases involving money. I perhaps go a little further than the noble Lord, Lord Kingsland, but I would be prepared to accept success fees in cases where money is at issue. In those cases a lawyer can, and indeed should, say, "You have a 50:50 or perhaps even a 55:45 chance of success but it will cost you far more money if you lose than you will get from it if you gain. It is not therefore in your interest, or in mine, to start these proceedings. Therefore, I am not going to take this case, which in the old days I would have taken because the test was whether it had a better than even chance of success". That sort of financial cost-benefit analysis is wholly inappropriate for asylum cases, as of course it would be in criminal cases.
I am not suggesting that one can equate asylum cases with criminal cases completely. In criminal cases, it has long been accepted, quite rightly, that a defendant in a criminal case is entitled to be defended by a lawyer who is paid through legal aid and can expect the lawyer to put forward a defence which is seen to have no reasonable chance of success whatever. We do not go as far as that in asylum cases. We are simply saying that an asylum seeker—someone who is an appellant in a case of this kind, seeking reconsideration—should be entitled to have legal aid except in cases where there is no reasonable chance of success.
This is an issue about which I and my noble friends feel very strongly. So far as today is concerned, we are in a bit of a practical quandary because the noble Lord, Lord Kingsland, has made it clear that he is not at present in a position to support our amendments fully. It certainly seems to us, therefore, that the appropriate thing to do today is to ask the leave of the House to withdraw the amendment which I have moved in order to give an opportunity for further consideration of the matter in the hope of achieving a consensus. However, we would in those circumstances wish to bring this back. I therefore beg leave to withdraw the amendment.
moved Amendment No. 47A:
Page 16, line 4, leave out from "of" to end of line 5 and insert "that Fund"
On Question, amendment agreed to.
[Amendments Nos. 48 and 48A not moved.]
moved Amendment No. 48B:
Page 16, leave out line 7 and insert "powers in subsections (2) and (4)"
On Question, amendment agreed to.
[Amendment No. 49 not moved.]
moved Amendment No. 49A:
Page 16, line 10, leave out from "to" to end of line 12 and insert "the result of the reconsideration or of the reference under section 103C);"
On Question, amendment agreed to.
[Amendment No. 50 not moved.]
moved Amendment No. 50A:
Page 16, line 32, leave out first "the" and insert "a"
On Question, amendment agreed to.
moved Amendment No. 50B:
Page 16, line 38, after "appeal" insert "under section 82 or 83"
My Lords, in moving Amendment No. 50B I shall speak also to Amendments Nos. 57B and 60. We are not moving technical Amendments Nos. 57C and 59A. My noble friend Lady Scotland wrote to the noble Lord, Lord McNally, and the noble Baroness, Lady Anelay, on
Government Amendment No. 50B clarifies that Section 103E applies to a decision of the tribunal on an appeal under Sections 82 or 83. This amendment is a tidying amendment and simply brings the wording in Section 103E into line with the wording in Section 103A.
Government Amendment No. 57B ensures that all of Section 103A through to Section 103E applies to appeals against deprivation of citizenship. It was always the Government's intention that all sections should apply to deprivation appeals and the amendment simply corrects a drafting oversight.
Finally, I turn to government Amendment No. 60. This amendment is consequential to government Amendment No. 18. The noble Lord, Lord Bassam, spoke to Amendment No. 60 when he spoke to Amendment No. 18 in the earlier sitting at Report. I therefore beg to move Amendment No. 50B and commend Amendments Nos. 57B and 60 to the House. As I said, I shall not move Amendments Nos. 57C and 59A.
My Lords, in moving Amendment No. 50C I shall speak also to the other amendments in the group. From my point of view, the crucial amendments in this group are Amendments Nos. 54A and 57A. Amendment No. 54A, which is kindly supported by the noble Lord, Lord Goodhart, is very close to the amendment that he and the noble Lord, Lord McNally, have tabled.
The issue behind this group of amendments concerns whether the new tribunal should have lay members on it. The existing tribunal does and normally sits as three, with one legal member and two lay wingmen. The new tribunal apparently will sit with only one legal member.
Anyone who has an even passing acquaintanceship with asylum applications will know that the credibility of the applicant is more often than not the determining issue. Credibility is an issue of fact. Indeed, credibility in an asylum case is a particularly difficult issue of fact, both because it is based on evidence given by applicants born and brought up in a world alien in religion, language and culture from our own; but also because it is extremely difficult to get reliable documentary or oral corroboration of alleged facts. Yet it is crucial that the new tribunal is, and is seen to be, competent in reaching accurate final conclusions about credibility.
That is so because the Home Office interview procedure is widely regarded as deeply flawed—the statistics speak for themselves on this matter; because the Home Office is not an impartial forum and becomes a party to any later appeal; and because, most important of all, the new tribunal is to be the one and only occasion when the factual issues are heard, assessed and determined by an impartial forum. Review of its decisions are only on errors of law, and then only on the papers.
So what steps have the Government taken to ensure that this impartial new tribunal is up to its task? The short and, indeed, long answer to that question is "none". Indeed, they have made the chances of an objective assessment of credibility even less likely. There are at least three reasons for that. First, the new tribunal is not a tribunal at all. The Government have not kept the existing three-person tribunal and expunged the single-person adjudicator. They have destroyed the three-person tribunal and replaced it with a single member. If any noble Lords want further proof of that, they should simply look at the schedules. The basis of the new scheme is not the schedule to the 2002 Act on tribunals, but the schedule on adjudicators. Indeed, it is hard not to detect a degree of hypocrisy in the use of the expression, "tribunal".
Secondly, the arrangements for the new so-called tribunals are just plain wrong, because applicants are entitled to have the factual aspects of their case heard, fairly and impartially, and assessed properly. If the tribunal were dealing with a criminal matter, the person appearing before it would have their case determined by tribunals of either three lay members in a magistrates' court, or 12 lay members in the Crown Court. However, the consequence of making factual errors in an asylum case can be far graver than in any criminal trial in this country.
Moreover, it is not only wrong of the Government to exclude lay adjudication from such tribunals, but plain foolish. The central object of the design of the statutory regime should be to make it sufficiently fair to discourage the courts from providing a parallel remedy in judicial review, as other statutory regimes have done successfully. One example is that of enforcement appeals. If the courts are not confident that issues of fact are properly dealt with by the system, they will permit judicial review on grounds of either perversity or disproportionality, following oral argument on permission applications—oral arguments that are denied under the proposed statutory regime.
That third consequence is much less likely to be the case if the tribunal is composed of three members. I accept that having three lawyers would be extremely expensive; but, much more importantly, it would be much less desirable than having one lawyer and two lay members, with the selection of lay members geared to employ individuals with long experience of assessing character, a reasonable proportion of whom should come from the ethnic minorities to reflect the backgrounds of the applicants. That would vastly improve confidence in the fairness of the objective fact-finding procedure. In doing so, it would make the statutory regime impervious to judicial review.
I hope that the Minister will forgive me if I express some scepticism about the Government's motives on the matter of lay representation on bodies that have a mixture of fact-finding and legal duties. That mistrust is most colourfully manifested in the Government's attitudes to jury trials, as we saw in the great debates on the then Criminal Justice Bill last year. We have also seen attempts—some successful—to remove lay members from tribunals, such as the social security tribunals. There seems to be a growing lack of trust by the Government in the judgment of our citizens. Is that because they perceive that our citizens have a growing lack of trust in them? I beg to move.
My Lords, three of the amendments in the group—Amendments Nos. 54, 55 and 56—are in my name and that of my noble friend Lord McNally. Two of the others—Amendments Nos. 54A and 57A—were tabled by the noble Lord, Lord Kingsland, and I have also put my name to them.
There is enormous value in having some lay members of the tribunal. A purpose of many parts of the tribunal system is that it is possible to bring into tribunals that exercise judicial functions people who have practical experience, even if they do not have legal qualifications. Employment tribunals are a well known example. For the reasons very clearly expressed by the noble Lord, we think it of particular importance that the AIT should not be restricted purely to people with a legal qualification. Many lay people have the common sense, understanding of human nature and so on to make them at least equally good judges of fact as people with legal training. As the noble Lord explained, in very many aspects such judgment is particularly important.
That is more the case than it would be otherwise because of the notoriously inadequate record of the initial decisions made by the immigration officers, of which a strikingly high proportion are overturned on appeal. We see no prospect of the standard of those decisions being substantially raised in the immediate future, although we hope that it will be a target in the longer run. Whatever our views might be if that standard were higher than now, unless it is substantially raised there is a very strong case—it would remain in any event—not only for the inclusion of lay members on the tribunal, but for saying that the initial decision of the tribunal needs to be taken by a panel of three. Then one or two lay members could be included on the tribunal, with a legally qualified chair. Again, that pattern is very frequently adopted in other tribunals, such as employment tribunals.
The amendments would very substantially advance the cause of justice. As the noble Lord said, where there has been a failure of justice by the tribunal, the consequences could be very serious—more so than those of a wrongful criminal conviction. We are happy to make common cause with the noble Lord over all the amendments.
My Lords, I have resisted the temptation to speak on the subject throughout debates on the Bill. I reiterate that I am a lay member of the Immigration Appeal Tribunal. One factor not covered in the debate is the amount of stress on the current chairmen of the tribunals, let alone the adjudicators. They have political and public pressures on them to do the job and get it right. In many cases, they work in isolation on case after case, and write up very often late at night. On many occasions, I can see the exhaustion in my colleagues' faces. Occasionally, a legal member can go off the rails. If he is sitting on his own, that may not be picked up for quite a long time.
I find it difficult to support my job in the face of the fact that the Government do not like it. At the same time, Her Majesty's Government should consider the pressures that they are putting on these people. There is a backlog of thousands of cases, and the pressure is on to clear that backlog. It is very important to have even one lay member to support them, to discuss the case with them, and, as the noble Lord, Lord Kingsland, made clear, to come to conclusions on the credibility of the applicant in the first place.
We must remember that this is the only jurisdiction in this country that has the power of invoking the death penalty—that is a very dramatic way of putting it. We can also impose on people an awful prison sentence. Some of the conditions in the countries that asylum seekers come from are appalling. One need only have someone who is very tired and not quite concentrating to make a little mistake. A lay member may just be able to prevent such a mistake from being made.
My Lords, I am encouraged by the presence of my distinguished predecessor, the noble and learned Lord, Lord Archer of Sandwell, to intervene briefly. I wish to quote from something that the Council on Tribunals, under the noble and learned Lord's chairmanship, said on an earlier proposal of this kind in its 1999 report. Page 11 states:
"We were troubled by the removal of the lay element from the Immigration Appeal Tribunal. Although we recognise that lay members may be unnecessary in cases concerned solely with issues of law, we believe that they have a valuable contribution to make when issues of credibility arise, particularly in asylum appeals".
As it happens, and as the noble and learned Lord will certainly remember, that proposal was changed during the passage of the Bill and the Lord Chancellor's power to appoint lay members to the Immigration Appeal Tribunal at that stage was preserved. This is not a point to which the Council on Tribunals has addressed quite the same attention on this occasion. Being more preoccupied with some of the other matters that I have touched on today, and given its less than full enthusiasm for the proposed single tier in this area, it has focused on other things.
In fairness to the Minister, we should acknowledge that the position is a little muddier in this area than has so far been acknowledged in this debate. The report published two or three years ago—I have forgotten the exact date—by Sir Andrew Leggatt, Tribunals for Users, which underpins the Government's forthcoming proposals for reform in that area, pointed out that it was curious that lay members are in the second-tier tribunal and not in the first-tier tribunal. That is the opposite of what one would expect, and what we would urge, in most systems.
I realise that the world has changed, because Sir Andrew recommended a general two-tier approach to tribunals, which the Government have now rejected in this area. It was in that context that he made the following proposal, which I quote from paragraph 23 of his report:
"There should be a first tier immigration and asylum tribunal, within a separate Division, which should be the sole judge of issues of fact. Complex factual issues are a regular feature of immigration and asylum cases, ranging from the circumstances of an alleged marriage or the obligations within an extended family abroad to the political situation in a country from which asylum is sought. Many cases would not be suitable for hearing by a chairman, even legally qualified, sitting alone and expert members should be used when appropriate at this level. In setting the qualifications for appointment to the tribunal, and to sit in particular cases, we believe"— that is to say, Andrew Leggatt and his team—
"that special care should be taken to ensure that those selected bring relevant experience and skills to the decisions to be taken, such as knowledge of conditions in particular countries concerned, or of refugees".
In the context in which Sir Andrew reported, he said that there should be a second-tier tribunal, which would consist of lawyers sitting alone—that is to say, the more normal model.
I recognise that in one sense the world has moved on from the one in which Sir Andrew made those proposals. Nevertheless, the core of this is the argument that he sets out in the paragraph from which I have just quoted, which links very nicely with some of the remarks made in this debate about the nature of the decisions taken at what I will express in shorthand as the first-tier level. I have in mind the factors that need to be considered, the importance of credibility and the involvement of relevant experts—that was the word he used; it was certainly non-lawyer participants—in making those judgments of fact.
It would be helpful if the Government could clarify why they have rejected this line of argument, which appears to have at least as much merit in the context of the single-tier proposals as in the context, which I acknowledge is different, of what Sir Andrew said.
My Lords, I wish to reiterate a point that my noble friend Lord Kingsland made: the possibility of having lay members and an ethnic minority member, or perhaps two, to make the process more credible in the eyes of the public and the asylum seeker concerned. Several noble Lords have pointed out that this is the one opportunity when the facts can be ascertained. It is an absolutely critical time for an asylum seeker. To extend the possible membership of the tribunal by making it possible to have a suitably experienced—as the Bill requires—ethnic minority member is a very important point that we should not forget.
My Lords, I wish to place on the record that I am well aware of the value that lay members have brought in the past in these matters, and of the value that they bring to tribunals in a range of circumstances, not least employment tribunals, as the noble Lord, Lord Goodhart, indicated. As the noble Lord, Lord Newton, signalled, we shall shortly publish our proposals for taking forward Sir Andrew Leggatt's proposals, which I hope will pick up the essence of his approach. However, that is for another time.
Amendments Nos. 54 to 56 have been grouped with Amendments Nos. 50C, 54A and 57A as they relate to the appointment of members of the asylum and immigration tribunal, and how the members are deployed within the tribunal. Amendments Nos. 54 to 56 when read together would mean that a person is eligible for appointment as a member of the tribunal if, in the Lord Chancellor's opinion, he or she had legal or other experience that made them suitable for appointment. The thrust of these amendments would be to retain the existing provisions in the Nationality, Immigration and Asylum Act 2002 for the appointment of adjudicators with eligibility for judicial posts not based solely on legal qualification.
Amendment No. 54A is very clear that its purpose is to enable lay people to be appointed to the tribunal. The noble Lord, Lord Kingsland, tabled a similar amendment in Committee, which was not debated then.
Amendment No. 57A is new and would require appeal hearings to be conducted by three member panels, unless directed by the president. Amendment No. 50C would ensure that determinations made by panels composed of lay members would still be subject to review in the High Court.
Let me seek to explain why we do not feel that these amendments are appropriate. After considerable thought, as a product of how we craft a new single-tier structure, we have taken the decision to ensure that the judiciary in the new asylum and immigration tribunal are appointed on the basis of qualified legal experience, or, in the opinion of the Lord Chancellor, they have legal experience which makes them suitable for appointment.
In setting out the reasons why we do not agree with the amendments, I will go back into history a little to explain how we have got to the current situation with the role of lay members in the appellate system.
The existing two-tier appeal system was introduced by the Immigration Act 1971. Lay members participated in panels formed as part of the Immigration Appeal Tribunal, as appeals to the IAT could be made on the grounds of errors both of law and of fact. However, the system of appeal introduced over 30 years ago by the Immigration Act 1971 bears little relationship to the complex system that we have today.
Compared to 1971, asylum and immigration appeals now raise many complicated legal issues that require close legal scrutiny and consideration. In these circumstances, a judge who has been appointed on the basis of legal experience is considered competent to conduct an appeal hearing on their own. However, it would be impossible to allow a lay member to conduct an appeal hearing on their own, and so this means they may be deployed only as part of a panel, as they are at present on the IAT.
However, even within the IAT it has become open to question whether lay members can claim to be an essential component to panel determinations on points of law, especially since the Nationality, Immigration and Asylum Act 2002, which restricted appeal to the IAT to points of law only. Lay members have made a valuable contribution to the IAT over the past 30 years or so, but these changes have diminished the role of lay members and placed them in an anomalous position—a position that the Government have addressed as part of their proposals for the new Asylum and Immigration Tribunal.
The majority of cases in the new tribunal will be heard by a single immigration judge. As adjudicators do now, they will need to consider points of law and of fact, and will therefore need to be legally qualified, legally experienced and competent to do this effectively. This rules out the deployment of lay members in this role, as their sole contribution to the decision-making process is restricted to matters of fact. It might be argued that lay members should be utilised in three-member panels, as is done now. However, in the new Asylum and Immigration Tribunal, the intention is that panels will usually be set up to hear only appeals that raise novel or complex points of law, or those that help to set authoritative case law for the tribunal. It goes without saying that the judicial bench hearing these appeals must be legally qualified.
The requirement in Amendment No. 57A that nearly all appeal hearings must be by three-member panels would, of course, also have a detrimental impact on resources and the speed of the appeal process. First, it would be wasteful of tribunal resources, as in the existing system just over half of appeals stop at the adjudicator stage, and only a minority of cases are ever considered by a three-member panel in the IAT. There is no need to have a panel for every case. Secondly, if the new tribunal had three-member panels within the faster times we expect, it would have to recruit many more new members, which would have to be paid for. Thirdly, if the tribunal were to keep to its existing resources, the number of appeal hearings it would be able to do per month with three-member panels would fall dramatically. There are some 56 lay members, and they are part time, sitting on average 40 to 50 days per year. That would inevitably lead to backlogs and delays. Lastly, in respect of lay membership within tribunals, the Leggatt report concluded that,
"There is no justification for any members to sit, whether expert or lay, unless they have a particular function to fulfil".
That is the essential thrust of why we believe that these proposals are consistent with Andrew Leggatt's proposals, recognising, like the noble Lord, Lord Newton, that times have moved on.
While lay members have had a role in the existing system, the Government have considered the needs of the new tribunal very carefully. We have concluded that the case for retaining lay members is no longer sustainable. To retain their services purely on the basis of custom and practice—which is what these amendments call for—would not be appropriate, courteous or right.
On the point made by the noble Lord, Lord Kingsland, about credibility, the future members of the IAT, adjudicators and legal members of the IAT are well able to assess credibility issues. They are trained and able to do so. The tribunal will be flexible; it will have both panels and single judges for cases. The tribunal is also well able to consider points of fact, that is, the purpose of the appeal when facts and law are considered together. If facts are not properly considered, that might amount to an error of law, and could be the subject of a review in the High Court.
In the new IAT, the judiciary are able to assess facts, as I have signalled, and if expert advice is required, as referred to by the noble Lord, Lord Goodhart, no doubt this can be requested. The low percentage of cases that result in the adjudicator's determination being overturned points to that credibility.
On the point raised by the noble Countess, Lady Mar, we are seeking to improve the quality of the tribunal through a new judicial structure that would allow the monitoring of individual members of the AIT. If a member made an error of law in determination, again that could be subject to appeal.
I have touched on the points made by the noble Lord, Lord Newton, about Sir Andrew Leggatt's report. The central point is that he was describing what was appropriate for a two-tier system; we are discussing a single-tier system. I share the desire for diversity expressed by the noble Baroness, Lady Carnegy of Lour. We are clear that that is subject to a merit test, as has been signalled previously. The way to address that is to look at how to ensure that there is a pool of suitable, qualified lawyers available for appointment if they meet the merit test to be considered as judges in the new AIT structure.
I hope that I have been able to explain why, with some sorrow, we feel that the contribution that lay members have made in the past has now come to an end as a consequence of the substantially different role that the AIT will perform.
My Lords, I am not sure whether to conclude that the Minister completely missed the point of all the submissions which have been made by your Lordships, or if he simply did not want to know about them. I will leave it to your Lordships to reach your own conclusions. I will not repeat my speech, although the Minister did not answer any of the central issues that I raised in my submission.
I am most grateful to all noble Lords who contributed. I will, if I may, single out my noble friend Lord Newton of Braintree, who brought the telling argument of Lord Justice Leggatt to bear on the lack of logic of the Minister. The Minister seemed to suggest that, because the only grounds of appeal from the tribunal to the High Court are errors of law, the only people who are qualified to sit on tribunals ought to be lawyers. Yet the basis of all the arguments that have been deployed on this amendment this evening is exactly the opposite. It is because grounds of fact are not appealable to the High Court that we need to be confident that they will be properly determined at tribunal level. The Minister has simply not confronted that question, let alone answered it to the satisfaction of the Opposition. The noble Countess, Lady Mar, observed that this is the only tribunal that can send a person to their death because it does not find a story credible. That is particularly and conclusively telling.
I want to test the opinion of the House. The first amendment in this group is Amendment No. 50C. Will the Minister accept that—if by any chance the Opposition and our supporters should succeed in this Division—Amendments Nos. 54A and 57A are contingent upon Amendment No. 50C? Will he accept that the group of amendments goes together in the vote?
My Lords, the issues have been widely canvassed in the debate this evening. It would be most extraordinary if—were we to win this vote—the Minister then said that we had to go through all the other amendments in this group as well. Be that as it may, I would like to test the opinion of the House.
moved Amendment No. 52A:
"REVIEW AFTER EXHAUSTION OF RIGHTS OF APPEAL Where a person's statutory rights of appeal have been exhausted with respect to an immigration decision, and where that person subsequently makes an application to the Secretary of State for his deportation to be stayed on the grounds that here has been a change of circumstances— (a) if the Secretary of State decides that there has been no change in circumstances or accepts that there has been a change of circumstances but decides that they do not justify a stay of deportation, the applicant within 10 days of the decision may apply to a High Court judge or a judge of the Court of Session to review the decision; (b) the review shall be conducted on the papers save in exceptional circumstances; (c) the decision of the High Court judge or the judge of the Court of Session is final."
My Lords, the reason for introducing the amendment is to try to make the statutory review scheme in the Bill comprehensive in such a way that it excludes the possibility of judicial review. We can only succeed in doing that if the statutory review procedure, throughout all stages of the asylum decision, is considered sufficiently fair for the courts not to exercise their discretion to use the judicial review remedies that our courts have so proudly developed over the past 40 years.
I am trying to confront the following scenario: an asylum seeker has exhausted his statutory rights and is due to be deported. At some stage before his deportation, a new set of circumstances arises, say, in the country to which he is to be deported. There is a regime change. A benign regime is replaced by an autocratic and brutal one. In those circumstances, the asylum seeker, who is about to be deported, communicates with the Home Office. He says, "My decision ought to be reviewed on the grounds that the circumstances of my case have changed since the final tribunal decision was made. The country to which I am to be deported is a country that will, if I go there, treat me at a standard below the standards required by English law".
The Home Office considers such applications. In some cases, it has accepted that there is a change of circumstances and consequently has stayed deportation. But in other circumstances, it has either said that it does not accept that the circumstances have changed or that the circumstances have changed but not sufficiently to stay deportation. If it reaches one of those two latter decisions, the asylum seeker will often seek judicial review. As a consequence, the whole case, including all the issues that were raised during the statutory procedure, is rerun, to everyone's unnecessary expense and, in some cases, to the mental detriment of the asylum seeker.
The amendment seeks to prevent all that by ensuring that where the Home Office decides that there has been no change of circumstances or that there has been a change of circumstances but that it does not believe that they are sufficient, the matter will be reconsidered by a High Court judge. It is not necessary to go back to the tribunal again. The only issue at stake is not the personal circumstances of the asylum seeker, but the factual situation in the country to which he is about to be deported. That can be swiftly, effectively, successfully, credibly and comprehensively dealt with by a High Court judge. There is no reason why his decision ought not to be final.
In my judgment, if that amendment is incorporated in the Bill, it will succeed in achieving de facto what the Government sought, so clumsily, to achieve with their ouster clause; namely, to persuade judges who sit in the administrative courts considering judicial review matters on change of circumstances applications that judicial review is not necessary because an alternative and satisfactory statutory procedure is already in place. I beg to move.
My Lords, I think that we all feel that it is in the initial stage of the asylum hearing where most of the worst mistakes are made. At the weekend, I was looking at the report compiled on behalf of the Mayor of London on the effects of Section 55 of the 2001 Act. It quoted an official from the Home Office who is used to hearing initial applications, who said, "When I get an application from Afghanistan, I simply repeat one of the standard formulae from the country assessment. When I get tired of doing that, then I repeat a different sentence from the formulae about the country assessment". Afghanistan has seen quite a lot of changes over the past few years. If one is doing that, one is almost bound to be wrong and severely risks being totally irrelevant to the case under consideration.
The number of mistakes that are made in that way is considerable: for example, the assertion that used to be made regularly under President Mobutu of Zaire. Under President Mobutu, opposition parties were allowed to flourish freely: well, so President Mobutu said. But President Mobutu is not granted and was never granted infallibility and it is not compulsory to believe him. One must question those assessments. One must question the picture of the country.
I also very much took the point made by the noble Lord, Lord Kingsland, about the drafting of a statute in such a way that it does not leave an opening for people to say those wonderful words of judicial construction: namely, Parliament cannot possibly have intended that. I think that the noble Lord would be wrong to suggest—as he sounded as if he might be doing at one stage, but he probably was not—that this is only a development of the past 40 years.
One can take this back right through the centuries; for example, to the Dissolution of Chantries in 1549. It had a proviso which had the effect of providing that when the King bought chantry land he had to do feudal homage to one of his subjects. The court concluded there that Parliament could not possibly have intended that that should happen. On that occasion, I think that the court was right.
My favourite example of Parliament not intending something was the Bologna ordinance, which laid down the death penalty for shedding blood in the piazza. One of the judges went to the barber in the piazza, who cut the judge in the course of shaving him. He was put on trial under the statute. The court ruled that that was contrary to the intention of the statute and that the barber was innocent.
Time spent here on getting the drafting of the statute right is likely to be time better spent than we realise. It will save a great deal of time later.
My Lords, I support the amendment. Once the stage of a deportation order has been reached, everything has been looked at in due order and in proper circumstances. But if there is a fundamental change in circumstances thereafter, it is idle to say, "Well, that has been decided by the earlier proceedings". By definition, the circumstances did not then exist. The intention, as set out by the noble Lord, Lord Kingsland, might almost have been made by him from the Front Bench since it admirably meets the intention so often reiterated by the Government that we must stop these endless appeals and judicial reviews. I do not think that they ever were endless, but that is beside the point.
The amendment does that very neatly. The only improvement that I should like is a pure drafting matter, which is a point raised by the noble and learned Lord, Lord Mackay, at an earlier stage. Paragraph (b) of Amendment No. 52A states that,
"the review shall be conducted on the papers save in exceptional circumstances".
I would like to know who will decide about the exceptional circumstances, but I assume it is the tribunal and the High Court judge hearing the quasi-judicial review application. But, obviously, it would enable the Government to make an application to the court that they may also be heard, and there might well be a cause for it. If the issue is whether there has been a sufficient change in the regime of the place where the deportee is to be sent, his evidence on the matter may be, not unnaturally, extremely one-sided. I would not want to see a repetition of the situation not many months ago when the Home Secretary complained bitterly that he did not seem to be able to appeal. I hope that the Home Secretary would be given every opportunity to have his say in these circumstances, but even his say will not take very long. So the Government's main objective will be met as will the interests of justice.
My Lords, in the specific example that the noble Lord, Lord Kingsland, gave for why he believed that this amendment was desirable, he talked about circumstances which, while not likely to be commonplace, are certainly possible—that is, a regime change in a country from one which was basically benign and no real threat to the life and liberty of the asylum seeker to one which was hostile in general and posed a real and specific threat to the applicant. That is not commonplace but it is possible.
However, in that situation there is a relatively straightforward way that the applicant or their solicitor would signal to the Home Office that they wish to apply for asylum because the circumstances had changed suddenly and significantly, affecting their liberty. In that circumstance the Home Office would make a decision about whether it was a new application for asylum, and, if so, consider whether it met the tests and should be accepted.
If the Home Office, through IND, came to the conclusion either that it was not a change of circumstances, or that the change of circumstances did not justify granting asylum, then the applicant would have a right of redress on judicial review, as the noble Lord, Lord Kingsland, signalled.
While I respect that the noble Lord is genuinely seeking to persist in this—no doubt that is the case—in these particular cases judicial review is a more flexible remedy than a statutory right of appeal. Under the proposal, a person would have 10 days to apply, but, if a person applies with judicial review at the last moment, they are required to apply within three days. The amendment would make it harder to remove when there was not a meritorious case. There is also no means to stop the person reapplying again and again for the appeal to the High Court, or else a person would go to judicial review as there was not adequate remedy.
I turn to some of the drafting points where this amendment is not appropriate. We do not believe it will be an effective solution or one that is necessary because a process for dealing with new representations made after appeal rights have been exhausted already exists, as I have summarised. The 2002 Act built on the one-stop appeal process first introduced in the Immigration and Asylum Act 1999. The Act provides for one application, one decision and one appeal. This has broadly been a success. For example, an asylum seeker who makes a claim is required to provide all their reasons for wishing to remain in the country. If their appeal is dismissed, or they decide not to make such an appeal, but then later make new representations, those representations will be considered under paragraph 346 of the immigration rules to decide whether they constitute a fresh claim.
If it is decided that the representations do not constitute a fresh claim, but rather that they are simply further representations on the original claim, the Secretary of State may maintain his original decision, so no new right of appeal arises. However, if the new representations are considered to be a fresh claim, a new decision, as I signalled, would be made by the Secretary of State which would give rise to a new right of appeal unless the case is certified under Section 96 of the 2002 Act. Certification under Section 96 may take place where a new claim relies on facts which should have been raised at an earlier stage. Clearly, that would not be the case in the situation advanced by the noble Lord. Certification prevents a further statutory right of appeal to the appellate authority or the courts, although it would be open to the claimant to bring a judicial review.
So, whether the approach is a fresh claim or simply further representations, the applicant always has a remedy—be it a fresh appeal right or the option of applying for judicial review.
We also have concerns about the effectiveness of the procedure proposed in the amendment. It is flawed in a number of ways. It would not make provision for the other party to appeal to make representations. An ex parte paper review process is not appropriate in this context. Statutory review under Section 101 of the Nationality, Immigration and Asylum Act, and the proposed system of High Court review under new Section 103A, are used as a means of identifying whether an applicant has an arguable case that the decision on their case is wrong.
If the High Court is of the opinion that there is an arguable case to be made, the appeal receives substantive consideration by the tribunal and both sides are given the opportunity to make written and oral representations. However, Amendment No. 52A would require the High Court judge to come to a final substantive decision without the benefit of representations from the other party.
The amendment also leaves the grounds open to challenge the Secretary of State's decision. It does not restrict the ground, for example, to an error of law. The failure to restrict the ground of review would mean that the High Court would be reconsidering errors of fact and law. If matters of fact are permitted in the review, it would therefore risk producing something akin to the original appeal hearing in the tribunal, but one that is one-sided and being decided by an inappropriate court not best placed to test that.
In addition, Amendment No. 52A would rule out the Court of Appeal involvement in the deportation process. The Court of Appeal plays an important role in establishing case law. But these are perhaps more technical points than ones relevant to the central issue raised by the noble Lord, Lord Kingsland. As I sought to address at the beginning, there are remedies available to the applicant, as there should be in the circumstances advanced by the noble Lord. If, despite there being evidence that a regime change had taken place, an IND official still made a judgment that that was not a new application, then the remedy of judicial review is there and we believe that that is appropriate in these circumstances.
My Lords, before the Minister sits down, I would like to express frankly to him my perplexity at his answer. We started the Bill in another place with an ouster clause. The ouster clause sought to oust judicial review from asylum decisions. The Opposition pointed out to the Government another, more satisfactory, way of creating a comprehensive statutory regime which is sufficiently fair to have the effect of ousting judicial review without actually saying it, from the beginning of the process to the end.
Between Second Reading and Committee stage in your Lordships' House, the Government withdrew the ouster clause. We are now told by the Minister that our attempt to create a comprehensive statutory regime, in the absence of an ouster clause, is insufficiently flexible because it does not have the flexibility of judicial review.
So the Government have now shifted from a position which began, in another place, with wanting to oust judicial review altogether. Since then they have travelled all the way across the spectrum to say, now, in your Lordships' House that, in some aspects of the asylum decision-making process, judicial review is preferable to a statutory regime because it is more flexible. All I can say to the Minister is: well, really. Where do the Government think they stand on the issue of judicial review?
It was appropriate for the noble and learned Lord, Lord Donaldson, to raise one technical matter. During his response the Minister in turn raised one or two technical questions about my amendment. I think I had a signal from the noble Earl, leading for the Liberal Democrat Benches, that he would like to reflect further on this issue. In those circumstances, although I wish to bring the amendment back at Third Reading, for the moment I beg leave to withdraw it.
moved Amendment No. 52B:
"APPEAL TO TRIBUNAL: PROCEDURE (1) Initial decisions by the Secretary of State on asylum application 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."
My Lords, we have just dealt with the final stages of the decision-making process of asylum applications. This amendment takes us back in the other direction, to the beginning. We are told that one of the objectives of the Bill is to reduce delay. It is well known that one of the biggest causes of delay in the asylum system is the gap between the application for asylum made by an asylum seeker to the Home Office and the decision reached by the Home Office—technically, the Secretary of State. This amendment would insert into the Bill a time constraint requiring the Secretary of State to decide on an asylum application within six weeks of it being made.
It is my submission that the adoption of this amendment would make a far bigger contribution to resolving the problem of delay in the asylum system than the reduction of time available during the appeal process itself, to apply for a review, to a period of five days. That is a minor point in the context of the overall problem of delay in the asylum process and I urge the Government to accept the amendment. I beg to move.
My Lords, I was almost fooled by the noble Earl, Lord Listowel, in that I thought he was rising to speak. If I understand the noble Lord, Lord Kingsland, correctly, this amendment is essentially a debating point to put pressure on the Government to ensure that the earlier parts of the process are dealt with expeditiously. We are four-square with the noble Lord on that as a goal of policy. But we could not adopt such an amendment because the consequences would be ones which I suspect neither he nor we would wish to see.
The new clause introduced by this amendment is concerned with both the initial decision stage in asylum cases and the appeal stage. Subsection (1) would require initial decisions on asylum applications to be taken and notified to the applicant within six weeks.
I suspect that the noble Lord, Lord Kingsland, is aware of how far we have moved since 1997. In that year, when we had the pleasure of inheriting the immigration and asylum situation, the average decision-making time was 22 months. By 2002 that figure, including decisions on backlog cases, was provisionally brought down to six months. We have since set ourselves a target to decide 75 per cent of new asylum applications within two months, a target that we look to be on course to beat, as well we should. Recently we have been deciding around 80 per cent of new cases within two months.
We have also made massive inroads into the backlog. From a peak of over 120,000 cases, it is now below 18,100, and falling fast. So we have no difficulty in being open to public scrutiny on our ability to address cases, turn them around and crack the enormous backlog that had built up when we came into government. This is relevant because, as noble Lords know, if the wider world—and in particular traffickers—sense that the pace is slow and the ability to remove difficult, that feeds the business of the traffickers very powerfully indeed. Fast but fair processing is fundamental to providing an effective deterrent.
Having said that, I do not see any merit in placing a rigid requirement in primary legislation stipulating that a decision must be taken within a specified time. In the majority of cases it is possible to decide claims quickly and fairly with efficient procedures, but there will be cases where more time will be needed if they are to be dealt with fairly—such as where medical evidence is considered crucial or further explorations need to be made in, for example, the person's home country to see whether their claim is well founded. Alternatively, a short-term disturbance may arise, making it essential to put a brief hold on decision-making for that country.
Under the constraints imposed by subsection (1) of the proposed new clause, we would be forced to take decisions without having the necessary facts at our disposal. The consequences would be that either we would make decisions without the relevant evidence—and thus would not be acting fairly—or we would fail to make decisions within the time-frame. I am not sure what consequences are implied by the noble Lord, Lord Kingsland, in that situation. If the Government did not deal with applications within six weeks, would the applicants be granted asylum in all cases? I cannot believe that that is the thrust of his proposal. There are better ways of ensuring that claims are decided promptly than the crude instrument of primary legislation.
Rather than going into more detail at this point, I repeat that I am four-square with the noble Lord on why we have to keep up both the political and managerial pressure to deal expeditiously and fairly with asylum applications. We have made enormous progress over recent years, but there is still further to go. While not welcoming it, I respect the challenge laid down for us to achieve more, but I do not think that this is the way to do so.
My Lords, I am grateful for the Minister's reply. I accept that progress has been made in reducing the time-frame between the application and the decision. I also accept that, at this stage of the passage of the Bill, this amendment is not word perfect. Clearly we would need to introduce a saving clause to deal with situations where a decision within six weeks was not genuinely possible.
On the other hand, the Government argued strongly earlier this afternoon—unsuccessfully, I am pleased to say—that increasing the time available for making applications for judicial review from five days to 10 days would introduce a serious delay to the process. But compared with the kind of delays that we face in the initial stages of the asylum seeker's journey through the statutory system, the delays in the appeal process are trivial. The House has already expressed itself on that point.
I submit that it would be desirable to have on the face of the Bill something along the lines of the amendment I have proposed. I accept that it needs to be more flexible than the straightforward six weeks proposed here, but I shall take the opportunity between now and Third Reading to give the matter more thought. I may reintroduce the amendment at that point. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 52C:
"IMMIGRATION DECISION PROCEDURE (1) Any interview with the applicant shall be conducted— (a) by personnel experienced in interview techniques and trained in cross-cultural communication; (b) by personnel of the applicant's own gender if requested by the applicant. (2) An accurate, verbatim and legible written record shall be kept of any interview held under subsection (1). (3) The applicant may request the record be read back to him and to request his alterations be included or, if rejected, recorded. (4) Any decision on the applicant's claim shall be determined— (a) by the same personnel as conducted the interview; (b) on the basis of up-to-date and accurate information on the applicant's country of origin; (c) after careful consideration of any medical evidence bearing out allegations of torture.
(5) An independent inspector shall be appointed after consultation with relevant organisations— (a) to report annually on the quality of decision-making in asylum cases; (b) to lay that report before Parliament. (6) Section 14 shall not be enacted until and unless the independent inspector is satisfied that the quality of initial decision-making has been improved."
My Lords, the tone of many of these amendments acknowledges that there is no easy fix for some of the dilemmas here. The Minister appears to recognise that the Opposition Benches are trying to be constructive in their approach, and certainly the thrust of Amendment No. 52C reflects that. I return to the tale of the Irishman who, when asked for directions, replied by saying, "If I were you, I would not start from here". We suggest that, in a Bill whose main thrust seems to be to eradicate the overly cumbersome appeals procedure, it misses the more basic fact that the real fault in the system lies in the initial judgments.
In 2003 over 64,000 initial decisions were made for asylum. Well over 16,000 of those were subsequently overturned. That indicates a massive waste of resources; it is massively unfair to claimants; and it damages public confidence in the system. In Canada only 1 per cent of initial decisions are overturned, which suggests that perhaps the Government have approached this whole problem from the wrong place and in the wrong way.
We are encouraged in this approach by the opinion of the Home Affairs Select Committee, which said,
"The real flaws in the system appear to be at the stage of initial decision-making, not that of appeal".
The Constitutional Affairs Select Committee said,
"we recommend that the removal of a formal tier of appeal should not be undertaken until it can be shown that there has been a significant improvement in initial decision making and the rise in the number of successful first tier appeals has been substantially reversed".
That would seem to be the sensible way to get this system right. As the noble Lord, Lord Kingsland, has indicated, we do not ignore the Government's initiatives and attempts to improve the system. We welcome the widespread consultation that has taken place. We welcome the setting up of the Advisory Panel on Country Information, although it might have been better if the Government had taken advice from that panel before extending their defined safe countries. Nevertheless, there are good and well intentioned attempts to get this right. We also welcome the involvement of the UNHCR in conducting an audit to report regularly on the quality of initial decision-making.
This amendment, however, puts forward some specifics to improve initial decision-making. We want to see better, more accurate, timely and impartial information relating to countries of origin. We want to see better expertise in relation to caseworkers. Time and again, those who have given evidence or briefed us have complained about the low quality of personnel involved in initial decision-making. That is not fair to the personnel involved and does not help in addressing some of the problems that we are concerned with.
In process we want to see greater continuity of human contact between decisions at the initial and appeal stages. We also think that there are too many perverse incentives built into the system. Surely the main thrust is not in getting the decision fast but in getting it right. That is why we suggest that a little more investment at the initial stage will produce that result.
We believe that there should be a better appreciation of medical evidence as it relates to allegations of torture, and available and adequate legal aid and advice at the initial stage.
I hope that the Minister will see this as very constructive and, in terms of what both the Home Affairs and the Constitutional Affairs Select Committees have recommended, as going right to the core of the problem—rather than what the Government have tried to do in their meander through this legislation in both Houses—to address some of the consequences of the imperfections at the initial stage. I beg to move.
My Lords, I strongly support this amendment and, in particular, subsections (4)(b) and (c).
My grounds, which relate to Zimbabwe—the only area on which I have any special knowledge—are that the Home Office has repeatedly decided that Zimbabwe is a safe country, despite the fact that the country reports from the FCO and the UNHCR took a totally contrary view. The enormous influx of refugees into Botswana and South Africa suggests that it is not exactly a safe country.
With regard to subsection (4)(c) I hope that the Minister can tell us at some stage, perhaps not now, whether the panels which are deciding whether there has been torture ask the Amnesty International specialists and the Amani Trust—who know torture when they see it.
The Home Office is suffering from a managerial problem. Staff need to be motivated; they need to be informed as to how important their work is; and perhaps they should be paid properly. I am sure that a lot of the problems could be resolved with proper training and proper management.
My Lords, I am tempted to rise because of what the noble Countess, Lady Mar, has said. I share the view that this amendment, in its exact form, should not be on the face of the Bill.
On the other hand, I want to express my support for the general thrust of some of the points the noble Lord, Lord McNally, has made, while acknowledging—with a wry smile in the direction of the Minister—that here he is effectively having to answer for matters that are primarily for the Home Office rather than for the department which leads him to be in his present place in the House.
If there have been two long-running concerns regarding what happens in this area—probably going back to the time of my predecessor, the noble and learned Lord, Lord Archer of Sandwell, as chairman of the Council on Tribunals—it is the quality of initial decision-making combined with something that has not so far been touched on in this debate, which is the astonishing proportion of hearings before the adjudicators at which no one comes from the Home Office. There is no Home Office presenting officer—known in the trade as a HOPO—to present the Home Office case.
Given the combination of question marks—I put it no stronger than that—over the initial decision-making, coupled with the fact that a surprisingly high proportion of hearings take place with nobody there to put the case for the Home Office, it is perhaps not surprising that the amount of overturning at the initial stage has been rather high.
Whether or not that is a fair line of argument, there is one thing on which all would agree there is concern, whether it be the great committees to which reference has been made by the Liberal Democrat Front Bench, or the experience of the Council on Tribunals, or anybody who has looked at this. It is the need, whatever is done with the tribunal system, to improve the quality of initial decision-making and to make sure that the Home Office's case is sensibly represented when an appeal hearing takes place.
My Lords, I could not agree more with quite a lot of what has been said, particularly by the noble Countess, Lady Mar, that, while these may in many cases be proper goals of policy, they should not, for a variety of reasons, be on the face of the Bill.
I am not sure whether the noble Lord, Lord Newton, expresses congratulations or sympathy that I am answering for the Home Office. It is not for the first time nor for the last, and it is always a privilege to do so.
My Lords, I shall say no more.
In essence, I agree with the central thrust of what the noble Lord, Lord McNally, has said: we want the right decisions to be made in IND—that is easy to say but not easy to do—and for them to be made as expeditiously as possible. That is the aim of the policy and the aim of the process. We are committed to high-quality decisions being made in IND for obvious reasons; it will lead to a more robust system.
We have introduced a range of measures to improve the quality of the decisions it takes. These include work on identifying the right candidates for asylum casework; looking at additional ways of strengthening the training and development of caseworkers; having samples of asylum decisions quality assured by senior caseworkers and external assessors; extending the feedback we obtain from appeal decisions; and doing further work on the country information products and instructions we issue.
While we consider the quality of initial decisions to be good we accept that more can be done and we are taking active steps in this area. In taking forward this work we are keen to involve outside help, as appropriate—as we are doing, for example, with the UNCHR. However, I do not consider that primary legislation is the appropriate vehicle for this.
Let me say a little more about what we are doing in regard to some of the specific issues raised by the noble Lord, Lord McNally. All asylum caseworkers attend a three-day intensive training course following their basic asylum training. After that, they have an opportunity to sit in on live interviews and the first interviews they themselves conduct will also be observed by a senior officer or an experienced colleague. There is also a certain amount of "learning on the job" as a typical asylum caseworker may conduct around 200 interviews during the course of a year.
There is a substantial cultural diversity in the workforce of IND, which is desirable given the wide range of nationalities—in excess of 150—with which it deals. Wherever operationally possible, we offer an interviewer of the same gender as the applicant upon request. Where a request has been made in advance, there has been no difficulty in doing this. If the request is made on the day, we still do our best to comply.
It is standard practice to keep an accurate, verbatim and legible manuscript record of the interview and to provide the applicant with a copy of the same at the end of the interview. Under current procedures, the interviewing officer has the discretion to allow a read-back of the interview to vulnerable applicants. Our experience is that the present system works well and that there is little demand for interviews to be read back generally. Any complaint about the accuracy of the interview record may be made after the interview and may also be raised at appeal if asylum is refused. We have received very few complaints about the conduct and the manuscript recording of interviews.
In many cases the person conducting the interview will be the person who decides the claim. This clearly has some advantages. However, with caseworkers being absent on leave or training and with some caseworkers working part-time, it would be operationally inefficient for the system to be too rigid and to always have the interviewer as the decision maker. It is possible for a person who has not interviewed the applicant to reach a decision on the claim, given that he or she will have available the full interview record and the relevant background information.
We recognise that accurate, balanced country information is vital to an effective system. As the noble Lord, Lord McNally, indicated, the 2002 Act established the advisory panel, and the UNHCR has cited the creation of the panel as an example of good practice. The panel's work has demonstrated that it is fulfilling its function in a robust and effective manner and the Home Office is keen to respond positively to its recommendations. With the assistance of the panel, we are confident that we can ensure that Home Office country material meets the highest standards.
Careful consideration is given to medical evidence bearing out allegations of torture. We are delighted that the Medical Foundation now provides regular workshops to asylum caseworkers to better equip them to interview victims of torture and to take proper account of medical evidence when reaching a decision on an applicant's claim.
The other elements of the amendment relate to an independent inspector. We do not consider that an inspector needs to be appointed. As I have outlined, we have many measures in hand to improve further the quality of original decision making and we are involving outside bodies in that work where appropriate. We believe that the quality of decision making is good—it has certainly significantly improved over the past seven years or so—and we are satisfied that the new appeal structure will provide a robust, independent means of challenging adverse decisions.
I turn now to deal with some of the other points raised in the debate. As to torture, our country reports reflect a wide range of information and sources, including Amnesty International, in regard to conditions in particular countries, and we take account of medical reports and reports from the Medical Foundation when assessing asylum claims. As to Home Office presenting officers, we wish to have presenting officers at as high a percentage as possible of appeals before the IAT, for the reasons given by the noble Lord, Lord McNally.
We do not believe that primary legislation is the place for these measures. However, many if not all of them are proper goals of policy and of management and we are working to achieve them. I hope that the noble Lord, Lord McNally, will withdraw his amendment.
My Lords, two matters always encourage the mover of an amendment: one is a steady stream of papers coming from the officials' box and the other is the quality of supporting speakers. I have had both with this amendment.
As the noble Countess, Lady Mar, said, I realise that some of the objectives may be matters for practice and training rather than legislation. I shall study the Minister's reply before deciding how to take this forward at Third Reading.
Having listened to those who have worked on this subject, I should tell the Minister that part of the problem at the initial stage has been a culture that somehow everything will be swept up at a later stage. That may explain the point of the noble Lord, Lord Newton, about the absence of Home Office personnel at key meetings. That is the kind of thing that undermines confidence and perhaps introduces slack practice.
I have been encouraged by the contributions that have been made. I hope that the Minister and his colleagues will read them carefully. We will return to this matter at Third Reading, when I hope we will see further evidence that the Government are addressing the problem of the initial stage in the process—which, as I have said, two committees have already indicated may have been the right place for the Government to have started this journey in the first place. I beg leave to withdraw the amendment.
moved Amendments Nos. 55 and 56:
Page 34, line 18, leave out first "as"
Page 34, line 18, leave out from "appointment" to end of line 19.
On Question, amendments agreed to.
These matters have been dealt with sensibly in correspondence between his honour Judge Henry Hodge and my noble and learned friend Lord Falconer. However, we ought to refer to them in order to obtain more certainty about the issues involved. I do not believe that they should be dealt with entirely through correspondence.
The provision in paragraph 3(1)(c) of the schedule states that members of the new single appellate authority,
"shall hold and vacate office in accordance with the terms of . . . [their] appointment".
If we were to stop at that particular point, there would be no issue between us at all. It would follow in that respect all similar provisions in statutes which create judicial posts in courts and/or tribunals.
I accept that terms and conditions of appointment have to include terms for removal from office for good cause. In that category, I include incapacity, misconduct, a substantial diminution of work and so on. However, the Bill goes entirely beyond that. It states that the terms and conditions of members of the new tribunal "may include provision for dismissal". I have certain objections to the word being used. "Dismissal" is the language of employment. It is not the language of those holding judicial office. Judicial office holders are not employees. They are independent judicial appointees.
There is no need to go beyond the existing law, which simply states that existing officers, adjudicators and immigration tribunal members hold and vacate office in accordance with their terms of employment. Adjudicators and AIT members fear that their terms of employment may deteriorate after commencement as a result of policy. Any change in terms and conditions is seen to be a threat to judicial independence.
On a number of occasions, my noble and learned friend the Lord Chancellor has given assurances that the arrangements for disciplining and removing judicial office holders will continue to apply in the new single tier, but there is no need whatever to state that terms and conditions of employment may include provision for dismissal. That adds absolutely nothing to the existing provision, save to arouse fears that the Government intend to promote an adverse change.
It is accepted that there is no longer any intention to include a requirement that members of the new single tier should comply with practice directions which are issued from time to time. I ask again if there is any compelling reason to go down the road of making express reference to dismissal at all. If the Government intend to embody in statute what currently happens, why is there any need to change existing law? I therefore hope that my noble friend will think again about this issue. I do not intend call a Division tonight, but I hope that he will think again between now and Third Reading.
I turn to Amendment No. 57D. It would simply delete the reference to "supervision" of judicial work and respect the authority of the Lord Chancellor in making rules for the new single tier. I know of no statute which contains provision for one judicial office holder to supervise another. If my noble friend can refer to any particular provision, I shall stand corrected.
The judicial hierarchy requires an appellate judge to overrule the decision of a judge who is less senior if it contains errors of law. That ensures that modern judicial decision-making receives modern methods of management. There is every reason for the new single tier to operate on a more collegiate basis than is the case at present. Existing adjudicators work alone and under great pressure of time, but those are not reasons for introducing a power to enable or, worse still, to require one judge to supervise another or, to put it in another way, to compel one judge to be supervised by another.
A collegiate atmosphere, discussions between judges, better training and personnel development of judges can be achieved without this unprecedented measure. Regardless of the Government's intentions, without an amendment, the Bill will be read as being inimical to judicial independence. In other words, we should not legislate to create something which we do not intend to apply. I beg to move.
My Lords, I have not previously intervened in your Lordships' debates on the Bill, principally because, whenever it was to be debated at its earlier stages, it chanced that I was out of the country on parliamentary business.
I would have hesitated to intervene at this late stage, both in the progress of the Bill and in today's business, had the matter not been drawn to my attention by my noble friend Lord Clinton-Davis and the Council of Immigration Judges. It is surprising that so startling a provision seems to have received so little attention. As my noble friend said, had Schedule 1(3)(1)(c) ended with "the terms of his appointment", we might have assumed that a member could be appointed on terms which included reference to the termination of his appointment, because that is what happens in many tribunals and happens already in this area. In a sense, it is the drafting which creates the problem by adding the words "which may include provision for dismissal". That is what has occasioned my noble friend's anxiety. There is a constitutional eccentricity in stating so unambiguously that the executive should have an unqualified right to provide for the dismissal of a member of the judiciary.
The Act of Settlement 1701 declared that judges' commissions should provide that they should hold office during good behaviour. Certainly in the case of the senior judiciary there was a provision about how that was to be decided by an address from both Houses of Parliament. As I understand it, all members of the judiciary since have held office so long as there was no complaint about their behaviour.
As my noble friend has pointed out, we now have a reference to "dismissal" taken from the vocabulary of employment law, not constitution law. A little earlier in our debate the noble Lord, Lord Newton of Braintree, made reference more than once to the Council on Tribunals, of which he is so distinguished a chairman, and to the fact that I was privileged to chair that council in the past. I wonder whether the Council on Tribunals has been consulted on this provision.
I am throwing the question at my noble friend the Minister without having had an opportunity to warn him and of course I shall understand if he says he will let me know at a later stage. But it is a surprising provision that one would have thought might have occasioned some comment from those quarters.
It has certainly led to a sense of shock among the existing adjudicators. Of course they already hold and vacate office in accordance with the terms of their appointment, including the duration of their office. But now we are told in effect that they are to be treated as employees.
Of course I accept my noble and learned friend the Lord Chancellor's assurance that he has no intention to change the practice, but at present there is no certainty as to what the future may hold or who will decide on appointments and terminations. If it is intended that the present practice shall continue and that members shall continue to hold office during good behaviour, we are faced with the question that has just been asked by my noble friend Lord Clinton-Davis: why change the vocabulary?
The anxiety of the members of the tribunal is hardly alleviated by the provision that is the subject of Amendment No. 57D that members of the tribunal shall supervise others. Judges may be appealed, but if they are to be supervised it is startling to find that they may be supervised by their peers—I presume specific members among their peers who have been delegated for that purpose.
Of course a collegiate atmosphere exists among adjudicators at the present time. They can discuss, but there is now a danger that this segment of the judiciary is beginning to feel its independence threatened. They find already, as the noble Countess, Lady Mar, pointed out, that targets are prescribed for their workload as though they worked on a conveyor belt; they feel that they have Big Brother looking over their shoulder; and they find that production targets are to be paramount even at the cost of the quality of their work. This has become a serious matter for some of them.
We are not debating a word in a statute but a philosophy of judicial practice. Of course judges should be industrious like everyone else and of course immigration and asylum cases should be heard quickly. But if that entails appointing more tribunal members, that may be a price that we have to pay. In the long term it will be a cheaper price than destroying the independence and the confidence of that section of the judiciary.
My Lords, the two amendments raise serious and substantial issues. We should be most grateful to the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell, for raising them. I agree that there is not a case for a lengthy speech. The noble Lord, Lord Clinton-Davis, was right to regard the amendments as unsuitable for dividing the House over, but I hope that the Government will take on board the points made and of their own motion will decide to make the necessary amendments to clear up these matters.
My Lords, let me more in hope than expectation seek to attempt a full response to try to resolve the matter tonight rather than us having to return to it later.
Regarding Amendment No. 56A, we are aware of concerns that have been raised by the reference to "dismissal" in paragraph 3. The provision is there simply to ensure that the terms of appointment for a member of the tribunal can include provision for removal from office. It is already the current practice for adjudicators and members of the Immigration Appeal Tribunal that their terms of appointment include provision for removal.
Why so? Why do it now? Although it may stretch credulity, parliamentary counsel felt that it would be beneficial to place the issue beyond doubt by using a suitable parliamentary opportunity to do so. In other words, it was felt desirable to give legislative clarity and to avoid any uncertainty that judges in appropriate circumstances could be removed from office.
The process for investigating any complaint against a judge is one that we know well and, as your Lordships know, under the disciplinary procedures no removal can take place without the concurrence of the Lord Chief Justice in England and Wales. The expectation of continuing to hold office during good behaviour is our custom and practice.
With regard to dismissal versus removal from office, without wanting to excite too much optimism I shall reflect on the matter to see whether there is any benefit in using different terminology.
With regard to Amendment No. 57D, we are also aware of concerns raised about the power to make rules providing for the supervision of tribunal members in paragraph 20 of Schedule 2. The reference to supervision reflects our intention to develop an organisational structure that will provide judges with better access to support and guidance.
The judiciary is a substantial body. There will be a judicial hierarchy. While individual judges have to make their own judgments on the facts before them without interference from anyone else, there is benefit in their being in a much more collegiate environment, which will be one of the aims of the tribunal.
We believe strongly that experienced judges working with and passing on their expertise to less experienced judges will help to improve the quality of decision making in the tribunal. We propose that immigration judges should be supported by a tier of supervisory judges who will be available to offer advice and guidance, appraise performance, identify training needs and other similar responsibilities that do not impinge on judicial independence. I can say categorically that draft determinations will not be subject to amendment by senior judiciary prior to promulgation.
As to the concerns that the briefing to the IAA judiciary suggested that the terms of appointment could be amended to require compliance with procedure rules or practice directions, officials were considering whether the terms of appointment should include compliance with procedure rules and practice directions. It was floated with the intention of ensuring quality, consistency and accuracy in decision making. However, that approach is no longer considered necessary.
I hope that I have gone a long way towards setting at rest the minds of my noble friend Lord Clinton-Davis and my noble and learned friend Lord Archer of Sandwell. I invite them to consider withdrawing their amendment.
My Lords, the noble Lord is right. In discussion with officials this morning we reflected on the Northern Ireland situation as being different. Nevertheless, as we know, while it is not exactly the same, there is a robust and strong process in place for ensuring that a judge cannot wrongly be removed from office, as should be the case.
My Lords, my noble friend the Minister has spoken of the need for him to reflect further on my original amendment, and I should like to avail myself of the same privilege. I should also like to think again about the subsequent amendment to which I spoke.
I want to thank my noble friend for his intervention, which was valuable, and I thank all those who have supported the ideas behind these amendments. I want to add only two things. First, I cannot give any assurances whatever tonight, but I hope that my noble friend the Minister will think again about what lies behind the amendments. Secondly, for the time being, I beg leave to withdraw the amendment.
moved Amendment No. 57B:
Page 37, leave out lines 39 and 40 and insert—
"(a) sections 103A to 103E (review and appeal),"
On Question, amendment agreed to.
[Amendments Nos. 57C to 58 not moved.]
moved Amendment No. 58A:
Page 43, leave out line 1 and insert—
"23 (1) Section 112 (regulations, &c.) shall be amended as follows. (2) In subsection (2) after "Regulations and rules under this Part" insert ", other than regulations under section 103D(3),". (3) For subsection (6) substitute— "(6) Regulations under section 103D(3)— (a) must be made by statutory instrument, and (b) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.""
On Question, amendment agreed to.