Lords Amendment

– in the House of Lords at 3:50 pm on 14th July 2004.

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28 Clause 14, page 13, line 22, leave out subsections (6) and (7) and insert—

"(6) Before section 104 of that Act (pending appeal) insert—

"103A Review of Tribunal's decision

(1) A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.

(2) The appropriate court may make an order under subsection (1)—

(a) only if it thinks that the Tribunal may have made an error of law, and

(b) only once in relation to an appeal.

(3) An application under subsection (1) must be made—

(a) in the case of an application by the appellant made while he is in the United Kingdom, within the period of 10 working days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, and

(b) in the case of an application by the appellant made while he is outside the United Kingdom, within the period of 28 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, and

(c) in the case of an application brought by a party to the appeal other than the appellant, within the period of 10 working days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision.

(4) But—

(a) rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and

(b) the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period.

(5) An application under subsection (1) shall be determined by reference only to written submissions of the applicant.

(6) A decision of the appropriate court on an application under subsection (1) shall be final.

(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to—

(a) a procedural, ancillary or preliminary decision, or

(b) a decision following remittal under section 103B, 103C or 103E.

(8) This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more members.

(9) In this section "the appropriate court" means—

(a) in relation to an appeal decided in England or Wales, the High Court,

(b) in relation to an appeal decided in Scotland, the Court of Session, and

(c) in relation to an appeal decided in Northern Ireland, the High Court in Northern Ireland.

(10) An application under subsection (1) to the Court of Session shall be to the Outer House.

103B Appeal from Tribunal following reconsideration

(1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

(2) In subsection (1) the reference to reconsideration is to reconsideration pursuant to—

(a) an order under section 103A(1), or

(b) remittal to the Tribunal under this section or under section 103C or 103E.

(3) An appeal under subsection (1) may be brought only with the permission of—

(a) the Tribunal, or

(b) if the Tribunal refuses permission, the appropriate appellate court.

(4) On an appeal under subsection (1) the appropriate appellate court may—

(a) affirm the Tribunal's decision;

(b) make any decision which the Tribunal could have made;

(c) remit the case to the Tribunal;

(d) affirm a direction under section 87;

(e) vary a direction under section 87;

(f) give a direction which the Tribunal could have given under section 87.

(5) In this section "the appropriate appellate court" means—

(a) in relation to an appeal decided in England or Wales, the Court of Appeal,

(b) in relation to an appeal decided in Scotland, the Court of Session, and

(c) in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

(6) An appeal under subsection (1) to the Court of Session shall be to the Inner House.

103C Appeal from Tribunal instead of reconsideration

(1) On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court.

(2) On a reference under subsection (1) the appropriate appellate court may—

(a) affirm the Tribunal's decision;

(b) make any decision which the Tribunal could have made;

(c) remit the case to the Tribunal;

(d) affirm a direction under section 87;

(e) vary a direction under section 87;

(f) give a direction which the Tribunal could have given under section 87;

(g) restore the application under section 103A to the appropriate court.

(3) In this section—

"the appropriate court" has the same meaning as in section 103A, and

"the appropriate appellate court" has the same meaning as in section 103B.

(4) A reference under subsection (1) to the Court of Session shall be to the Inner House.

"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) applies where the Tribunal has decided an appeal following reconsideration pursuant to an order made—

(a) under section 103A(1), and

(b) on the application of the appellant.

(4) The Tribunal may order that the appellant's costs—

(a) in respect of the application for reconsideration, and

(b) in respect of the reconsideration,

shall be paid out of that Fund.

(5) The Secretary of State may make regulations about the exercise of the powers in subsections (2) and (4).

(6) Regulations under subsection (3) may, in particular, make provision—

(a) specifying or providing for the determination of the amount of payments (which may, in particular, vary according to the result of the reconsideration or of the reference under section 103C);

(b) about the persons to whom the payments are to be made;

(c) restricting the exercise of the power (whether by reference to the outcome of the appeal, the circumstances of the appellant, the nature of the appellant's legal representatives, or otherwise).

(7) Regulations under subsection (3) may make provision—

(a) conferring a function on the Legal Services Commission;

(b) modifying a duty or power of the Legal Services Commission in respect of compliance with orders under subsection (2);

(c) applying (with or without modifications), modifying or disapplying a provision of, or of anything done under, an enactment relating to the funding of legal services.

(8) Before making regulations under subsection (3) the Secretary of State shall consult such persons as he thinks appropriate.

(9) This section has effect only in relation to an appeal decided in—

(a) England,

(b) Wales, or

(c) Northern Ireland.

(10) In relation to an appeal decided in Northern Ireland this section shall have effect—

(a) as if a reference to the Community Legal Service Fund were to the fund established under paragraph 4(2)(a) of Schedule 3 to the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)), and

(b) with any other necessary modifications.

103E Appeal from Tribunal sitting as panel

(1) This section applies to a decision of the Tribunal on an appeal under section 82 or 83 where its jurisdiction is exercised by three or more legally qualified members.

(2) A party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

(3) An appeal under subsection (2) may be brought only with the permission of—

(a) the Tribunal, or

(b) if the Tribunal refuses permission, the appropriate appellate court.

(4) On an appeal under subsection (2) the appropriate appellate court may—

(a) affirm the Tribunal's decision;

(b) make any decision which the Tribunal could have made;

(c) remit the case to the Tribunal;

(d) affirm a direction under section 87;

(e) vary a direction under section 87;

(f) give a direction which the Tribunal could have given under section 87.

(5) In this section "the appropriate appellate court" means—

(a) in relation to an appeal decided in England or Wales, the Court of Appeal,

(b) in relation to an appeal decided in Scotland, the Court of Session, and

(c) in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

(6) A further appeal under subsection (2) to the Court of Session shall be to the Inner House.

(7) In this section a reference to the Tribunal's decision on an appeal does not include a reference to—

(a) a procedural, ancillary or preliminary decision, or

(b) a decision following remittal under section 103B or 103C."

The Commons agree to this amendment with the following amendments—

28A Line 14, leave out "10 working" and insert "5"

28B Line 24, leave out "10 working" and insert "5"

28C Line 36, after "to", insert—

"(a)"

28D Line 36, at end insert—

", and

(b) where rules of court permit, other written submissions."

28E Line 45, after "more", insert "legally qualified"

28F Line 131, leave out from "payments" to end of line 133

28G Line 136, leave out "the outcome of the appeal," and insert "the prospects of success in respect of the appeal at the time when the application for reconsideration was made, the fact that a reference has been made under section 103C(1),"

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28. I shall speak also to Lords Amendment No. 62 and Commons Amendment No. 62A thereto, which cover substantially the same ground, as well as Amendments Nos. 28AA, 28BA and 62B in the name of the noble Lord, Lord Goodhart.

When I refer to the High Court, I am also referring to the High Court of Northern Ireland and the Court of Session in Scotland.

We are at that stage of our parliamentary process where we are hopefully approaching the end of consideration of the Bill. Let no one allege that the Government have not listened and reflected on what the House has said. My noble and learned friend the Lord Chancellor gave serious reflection to the arguments made in the House about the judicial review ouster and came back with an alternative which, in broad measure, the House has welcomed. Secondly, we previously considered the issue of legal aid success fees. I gave the noble Lord, Lord Kingsland, my undertaking that, within the terms in which he had put the issue to me, I would take the issue away and seek to address it in another place. I hope that he will find that we have done so.

The noble Lord will also know from Commons consideration that we also considered the issue of lay members, which we did not rejoice about, but we also listened to the House in that respect. So the House has been listened to, but we have not been persuaded by the House about this measure.

New Section 103A in Amendment No. 28 allows a party to the appeal before the Asylum and Immigration Tribunal to seek a review of the tribunal's decision in the High Court, on the grounds that the tribunal may have made an error of law. The High Court may order the tribunal to reconsider the case. As those who have been following the Bill closely will know, there is also an interim process, a filter process—because there may be a large volume of such applications to the tribunal—whereby, if the transitional process in Amendment No. 62 is in place, the review will first be considered by a senior judge in the tribunal. He may also make an order for reconsideration of the case. If he chooses not to, the applicant may opt in for the case to be considered by the High Court anyway.

Amendments Nos. 28A, 28B and 62A restore the Government's intention that five-day time limits should apply to that process, both for the initial application, and the opting in, if the transitional filter process is in place—in the circumstances I just described.

The Bill originally contained an ouster of the jurisdiction of the higher courts. Having listened to opinions, we brought forward the new policy in Amendment No. 28. Under the new policy, the decisions of the single-tier tribunal are now subject to review in the High Court. We agree that it is important that the High Court has such oversight, but we cannot allow that to compromise our legitimate aims of speed and efficiency. Therefore, it is vital that limits are placed on the review to prevent applicants without meritorious cases using the process to cause delay and expense. One of those limits is the new system of legal aid for reviews, to which we shall return later, and another is the limit on the time in which an application can be made.

The Government are confident that five days is more than enough for an applicant to consult their legal representative, for the representative to prepare the application and for the application to be lodged. Similarly, five days is also entirely sufficient for the simple procedure of opting to have a review application considered by the High Court under the transitional provisions.

For the avoidance of doubt, five days means five working days—weekends and bank holidays are excluded. That does not need to be spelt out in the Bill, although new Section 103A(4)(a) points to the fact that that effect is already achieved by rules. I should also point out that after the decision is promulgated by the tribunal, two days are allowed for the determination to reach the representative through the post before the five days starts. Therefore, we are talking about five full days for the representative to work on the application.

The time limits in Amendments Nos. 28A and 28B apply when a party to the appeal wants to challenge the decision of the asylum and immigration tribunal. The applicant will therefore have already presented his case to the Immigration and Nationality Directorate and before an independent tribunal before reaching that stage. The grounds of appeal will already have been covered at the appeal and in the tribunal's statement of reasons. Furthermore, that review is not a rehearing, but is focused solely on errors of law made by the tribunal. Given that the legal representative will, in most cases, already be familiar with the case, the preparation for it should not prove onerous.

In order to test the assertion, and to test the realism of what we are putting before the House, we have asked the Legal Services Commission to look at the current statutory review process under Section 101 of the Nationality, Immigration and Asylum Act 2002. Based on this, we have looked at what, in practice, have been the submissions made by lawyers as part of the statutory review process. I have inspected some of those cases and solicitors have not always been—how shall I put it?—very fulsome in terms of the cases they have put forward. We would expect them to do around six hours' work on a review application, including reading through the papers, interviewing the client, taking instructions and, if necessary, briefing counsel. Counsel is not always briefed in such cases; if counsel is involved, he could be expected to take between two and five hours to draft the application. We are therefore talking about six hours for the solicitor and up to five hours for counsel. That is very achievable in five working days.

Of course, there will always be exceptions. We have made it clear from the outset that we would not want to see this lead to injustice. Therefore, Section 103A(4)(b) explicitly allows the High Court to accept out-of-time applications,

"where it thinks that the application could not reasonably practicably have been made within that period".

This will deal with all the exceptional circumstances—for example, if the usual legal representative of the applicant was unwell and unable to complete the application in time, or if specialist evidence needed to be collated to present a full review application. This will work by the applicant applying out of time and the High Court exercising its discretion to allow the out-of-time application.

Put at its simplest, we are confident that five days is adequate in the majority of cases. The legislation explicitly allows the High Court judge, who will clearly be charged with upholding the interests of justice, to grant further time when the case is put to him and he considers that that case could not reasonably practicably have been made within that period. The legislation could not be clearer or, we believe, fairer.

It would be even more absurd to allow more than five days for "opting in" under the transitional filter process. I do not want to bore the House with the detail, but this is essentially when a case has been considered by a senior judge in the AIT on a review application and has been found not to be valid. At that point, the applicant still has the further right to lodge a case to the High Court, but this will require little more than a fax or a letter to be sent to the High Court, indicating that the applicant wishes his case to be considered again, following consideration by a judge in the tribunal. That could be done in half an hour, so five days is somewhat generous.

Why does all this matter? As I have set out on previous discussions on the Bill, it is important that we have a process that is no slower than necessary in the interests of justice. It is important that we send a message that this review process is for obvious errors of law, and not to allow legal representatives to trawl through obscure legal arguments and technicalities. And we will send that message clearly if we make sure that the opportunities for causing delay are minimised.

For these reasons, and not out of any stubbornness or obduracy—I hope that noble Lords will agree that we have exhibited neither characteristic in this House on the Bill—we do not think that there is any justifiable reason for resisting the views of the other place twice that five days is perfectly sufficient for either of these circumstances and, moreover, that that five-day period is protected by the direct discretion given to a High Court judge to grant more time when he thinks it was not reasonably practicable to put in an appeal in that case. What more, fairly, should be done? I ask the House not to resist the Commons amendment in this respect.

Moved, That the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28.—(Lord Filkin.)

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

rose to move Amendment No. 28AA, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28, leave out "agree" and insert "disagree".

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, in moving Amendment No. 28AA, I wish to speak also to Amendments Nos. 28BA and 62B. These are intended to maintain the extension of time for making an application for reconsideration under the new Section 103A of the Nationality, Immigration and Asylum Act 2002 from five to 10 working days—that is, two weeks after receipt of the notice of decision.

Five days is, frankly, a ridiculously short period of time. The applicant's lawyer will have to read the decision carefully; he or she will have to consider the legal issues involved in the decision; he or she may well have to consult the client, which is likely to involve arranging a meeting at which an interpreter must be present; he or she may have to consult counsel; and he or she will have to draft the application, a document requiring great care as it is the sole basis on which a judge of the appropriate court will decide the application. There is no chance to supplement that document at an oral hearing as there will be no oral hearing. It will also be necessary to get the application to the appropriate court before it closes for business on the last available day.

If the lawyer in question had little else to do, a five-day period might well be enough. But a competent immigration lawyer—and it is the objective of the Government, as it is of everyone else, to ensure that these cases are handled by competent lawyers—will be handling other cases, perhaps many others, at the same time. He or she will not know in advance when the decision will be released by the tribunal. If it arrives when the lawyer is appearing in court, the lawyer cannot possibly drop everything else. The lawyer may have to hand over the case to a colleague in the same firm or organisation who is not familiar with it; or it may be impossible for the lawyer to find someone else and the applicant may have to find a new lawyer.

The noble Lord, Lord Filkin, said on Report when our amendment was accepted:

"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".—[Hansard, 7/6/04; col. 19.]

I might rephrase that as, "It means you can draft your application in advance". That, frankly, is absurd. One ground for the application—and it is only one of many possible grounds—might be that the tribunal member in question failed to take into account evidence he should have taken into account. That comes within the description of an error of law. But how can you possibly know in advance that the member of the tribunal will have failed to take into account a particular piece of evidence? To make that application, you then have to say what the evidence was, show that it was not taken into account and why it might have made a difference it if had been. All those things will take a substantial amount of time.

The Joint Committee on Human Rights said in its 13th report of the current Session in paragraph 1.77:

"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".

In the debate on 7 June, our amendment was supported by speakers from all Benches, including the noble Lords, Lord Clinton-Davis and Lord Plant of Highfield, from the Government Benches, and it was opposed by no one other than the Minister.

In the debate in the House of Commons on Monday of this week, the Government's amendment to restore the five-day time limit was described by Robert Marshall-Andrews as,

"a miserable, snivelling little amendment that has no valid reason behind it. It is entirely meretricious, and it smacks of petulance".—[Hansard, Commons, 12/7/04; col. 1177.]

I could not have put it better myself.

I am afraid that I simply cannot understand why the Government, totally without justification and with hardly any benefit to increasing the speed of the proceedings, continue to insist on this five-day limit. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28, leave out "agree" and insert "disagree".—(Lord Goodhart.)

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I support the noble Lord, Lord Goodhart, in his amendment. It seems to me nonsense to turn down a proposal to extend the time very briefly, when what is likely to result is a lot of out-of-time cases before the courts. How much time will that take and how much will it cost the taxpayer?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, the noble Lord, Lord Filkin, was right in saying that there has been a considerable amount of beneficial flexibility as the Bill has moved through your Lordships' House and another place. The issue of time has been, in my submission, the one exception to that.

I agree with the noble Lord, Lord Filkin, that the time limits should be demanding. In Committee, we ourselves tabled an amendment suggesting a limit of seven days; but it is our view that setting a limit of five days goes too far.

There are many circumstances in immigration appeals in which it is necessary to switch from a legal adviser who has a general practice in immigration law to an adviser who deals with very special issues. It would be extremely difficult to make such a switch within as tight a timetable as five days.

Moreover, as the noble Lord, Lord Goodhart, said, although appeals can only be on the basis of an error of law, there are many occasions when, to make out an appeal on an error of law, a legal adviser has to study in considerable detail the factual structure of the case to determine whether a perverse decision was reached with respect to the evidence.

We must not forget, either, that, on occasions, the consequences of a wrong decision for an applicant are very serious if he is returned to a country that is determined to incarcerate him for a long period or to put him to death. We must remember that those applicants often do not speak any English.

In all those circumstances, it is our view that the limit of five days ought to be considered again by the Government and extended. We on these Benches will support the noble Lord, Lord Goodhart, in his amendment.

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench

My Lords, in the early 1970s, it was my privilege to be the president of the National Industrial Relations Court. I claimed, rightly, that it was the fastest court in the West, which produced the reasonable comment from Michael Foot that I was "trigger happy". I mention that merely to show that I am not one who supports sluggardliness in court proceedings. It is terribly important to keep things moving. But—and this is an important but—it is no good fixing one's timetable at a point when there then must be numerous applications for extensions of time. That itself involves a waste of time.

The noble Lord, Lord Goodhart, rightly pointed out that people who are any good at any specialty in the law tend to be very fully employed. That is why they become experts and why they are so employed. That being so, I could not help thinking that the Minister believed that lawyers were concerned only with one case at a time. It would appear that he believes that they can pick up a case on a Monday and study it, not in a desultory manner but giving 11 hours to it, which is nearly two days, then have nothing else to do for the rest of the week. It is not like that. It may be that someone with a true specialty has only one case at a time and that case lasts for a couple of months—but that is very different. It is not the area that we are discussing.

The Minister then talks about lawyers trawling through the law and seeking obscure technicalities. People do not do that, or certainly not in a field with which they are familiar. They know what the points are; without reference to any particular case, they know what they are looking for, and they look for it. They certainly will not try to find fancy points—unless, of course, they are satisfied that there is some real injustice occurring that is way outside the ordinary experience. Then they will look to see whether there is any way in which they can safeguard the true and real interests—not bogus interests—of their clients. I do not find that reprehensible at all, although there seems to be an assumption that it is.

I cannot understand what real difference there is between 10 days and five days. Looking at the whole period in which the proceedings are governed, I do not know quite what they are, but I am sure that an extra five days represents a very small increase in the time available. I am also tempted to wonder whether anyone has found out whether the judges can cope with that period. It is one of the features of judicial life and managing courts that there is a degree of ebb and flow. If one has no time to balance things out, one becomes either a bit slap-happy or inefficient.

I strongly support the amendment tabled by the noble Lord, Lord Goodhart, from a practitioner's point of view—meaning the point of view of a judicial practitioner.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, I, too, support the noble Lord, Lord Goodhart. The Government's approach is a recipe for half-baked cases. It means that people will be rushed in producing what should be a very important document, or they will be obliged to apply to the court to exercise its discretion—something which will add considerable delay. We are arguing about five days, which does not justify our spending more than a few seconds on this meritless opposition.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, there is the further point, in support of the noble Lord, Lord Goodhart, that we all know that unfortunately many asylum seekers fall into the hands of unscrupulous lawyers who take on too many cases and have very little hope of delivering what they should deliver.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I shall speak briefly, because this may be one of those occasions on which whatever one says, one is not certain of having a willing hearing.

Why go slower than necessary? That is, essentially, the Government's question. I have set out why we believe that five days is an adequate period of time. Therefore, yet again it appears that the House is always looking for reasons to make the process slower and more complex than is desirable.

I shall seek to explain why it matters that—

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, your Lordships' House might find the Minister's argument more convincing if he had taken seriously the amendments that we tabled at an earlier stage, introducing time limits to the beginning and the end of the asylum procedure—in other words, between the asylum application and the initial consideration by the Home Office; then, after the appeal process was over, between that point and the time of deportation. If the Government were prepared to entertain time limits at those stages, which cause far greater delay than the delays within the appeal procedure, your Lordships' House might find the Minister's argument more convincing.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I shall make my own judgment on how the Government wish to put their case forward, but I am always grateful for the advice of the noble Lord, Lord Kingsland.

The essence of what we have said throughout this debate is that the Government must prevent unnecessary delay at every single part of the process. It is not a question of saying that we should bear down only on the initial consideration, although the noble Lord, Lord Kingsland, is right in saying that we should. We have made great progress on that in recent years and the process is vastly shorter and of higher quality than it was. But that is no reason whatever for saying, "What does another week matter? Let's have another week added on to the process for the avoidance of doubt". I remind the House that keeping a family on state support while a lengthy appeal process goes through costs several hundred pounds a week. The state should willingly support that expenditure if it is necessary but we should not get drawn into it if it is not.

The noble and learned Lord, Lord Donaldson, was clear in his argument that lawyers are busy people—many people are busy people—and that they are not just waiting for cases to come over the hill to be addressed. That is true, but, as I sought to indicate, on the best estimate we have been able to identify, we are talking about approximately one day's work by a lawyer. In the process that we are talking about, five days are provided for doing that one day's work and if there are reasonable grounds why that is not possible they can go to court and be granted more.

It also matters because the system is prone to abuse. I make no apology for coming back to that. We know that 50 per cent of all people who are refused by the adjudicator then appeal. The noble Lord, Lord Newton, who is in his place, will know that one gets nothing like those statistics in any other part of the tribunal system. The reason why is obvious: it runs the case long and reduces the time period when the individual might be removed from the country if he is found not to have a meritorious case.

I draw the attention of the House to the judgment by Mr Justice Collins, whose judgments have not always been met with rejoicing by the Government. He gave a clear example just last week of a case that had been run right through the process by the Refugee Legal Centre. It cost £60,000 and in his judgment Mr Justice Collins said that he found in it absolutely no merit whatever. We should not be party to supporting a system that runs cases long when there is no justification for doing so.

It is not proper for me to go into detail but, of course, the department has consulted the noble and learned Lord the Lord Chief Justice on this process. I am certain that he has a view that he does not want the High Court swamped with unmeritorious cases. We would be a foolish Government, particularly in the light of our recent experiences, if we had not consulted properly.

I shall say no more. We think that five days are perfectly adequate for this process. I do not think that we are going to have a meeting of minds on this matter so no doubt the House will decide the issue.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, before the Minister sits down, can he give us a reference to the judgment by Mr Justice Collins? The only recent case that I can recall in which a figure of £60,000 was involved was that of Jacqueline Konan who sued the Government for being unlawfully detained and was awarded damages of £60,000 by Mr Justice Collins.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I looked for the details in my voluminous pack before I rose to speak but I could not put my finger on them. I shall write to the noble Lord with the answer very rapidly indeed.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, I am grateful for the support that our amendment has received from other parts of the House. It has a great deal of logic and good common sense behind it. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 28AA) shall be agreed to?

Their Lordships divided: Contents, 127; Not-Contents, 137.

Division number 1 Private Parking: Ports and Trading Estates — Lords Amendment

Aye: 125 Members of the House of Lords

No: 135 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28B. I have spoken to this amendment with Amendment No. 28A.

Moved, That the House do agree with the Commons in their Amendment No. 28B.—(Lord Filkin.)

[Amendment No. 28BA not moved.]

On Question, Motion agreed to.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

rose to move, That the House do agree with the Commons in their Amendments Nos. 28C and 28D to Lords Amendment No. 28 and do propose Amendment No. 28DA as a consequential amendment to Lords Amendment No. 57:

57 Page 39, leave out lines 30 to 41 and insert—

"(w) may make provision about reconsideration of a decision pursuant to an order under section 103A(1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard);

(x) shall provide that a party to an appeal is to be treated as having received notice of the Tribunal's decision, unless the contrary is shown, at such time as may be specified in, or determined in accordance with, the rules;

(y) may make provision about proceedings under paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (transitional filter of applications for reconsideration from High Court to Tribunal);"

28DA Line 10, at end insert "(and may, in particular, make provision of a kind that may be made by rules of court under section 103A(5)(b))"

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, Amendments Nos. 28C and 28D are minor amendments. They introduce an additional flexibility to the procedure for review. In the majority of cases, the High Court judge will simply look at the applicant's papers in order to decide whether or not there may have been an error of law. However, in some circumstances it may be appropriate for other submissions to be considered. These amendments allow flexibility to make provision for this through rules of court. An example of when it might be helpful for the respondent to file submissions involves fast-track cases. Where speed is key, allowing a respondent's submissions would enable the reconsideration to take place more quickly. I should clarify that in both cases, we are talking about a process whereby a High Court judge is considering whether to allow the case to be heard on a point of law and to be returned to the AIT for this purpose. It is not itself a hearing.

Amendment No. 28DA is consequential on Amendments Nos. 28C and 28D and introduces a similar flexibility for the review while the filter is in place. For an initial period, the review application will first be considered by the tribunal. This amendment means that the procedure rules for the AIT can similarly allow the tribunal to consider additional papers. I therefore urge noble Lords to agree to Amendments Nos. 28C, 28D and 28DA. I beg to move.

Moved, That the House do agree with the Commons in their Amendments Nos. 28C and 28D to Lords Amendment No. 28 and do propose Amendment No. 28DA as a consequential amendment to Lords Amendment No. 57.—(Lord Filkin.)

On Question, Motion agreed to.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28E to Lords Amendment No. 28.

This amendment brings us to the issue of lay members, which we discussed at a previous stage, when the House made clear its wish that lay members should be retained within the new asylum and immigration tribunal. The House argued that there was merit in them being there as a resource to the tribunal in certain cases.

As noble Lords will be aware, the Government did not believe that that was in principle desirable for reasons that I set out earlier. However, the Government have concluded, as can be seen from proceedings in another place, that we will not seek to insist on the removal of lay members from the tribunal; we have listened to the House in that respect. On the other hand, an amendment that was linked to it—as least by implication or consequentially—was that all tribunal panels should be three-member panels. We will consider that amendment later. In essence, in this process we are saying that we are content not to seek to remove lay members from the AIT. In a sense, our view is that it is important that the president of the tribunal has the discretion to deploy the judicial resources—including lay members—as he or she thinks fit. That is very much in tune with our discussions on these issues.

There are specific amendments on these issues essentially because draftsmen have felt that for the avoidance of doubt or better drafting processes, they needed to be brought forward in a slightly different form. Their thrust, purpose or outcome is four-square with what I believe the House wanted when it pressed this matter at previous stages. With that prelude I shall also speak to Amendments Nos. 42, 43, 44 and 61 and Commons Amendments Nos. 61A to 61C thereto, which are part of the same group.

We are prepared to accept the will of the House that there should be a role for lay members in the new tribunal. This was expressed in the original Amendments Nos. 42, 43, 44 and 61. However, the drafting had unintended consequences, and so parliamentary counsel has produced Amendments Nos. 61A to 61C and 28E in lieu. They have the same effect.

One notable difference is that the drafting of Amendment No. 61A as opposed to Amendment No. 42 allows for the appointment as legally qualified members of the tribunal of people who do not satisfy the letter of the requirements in sub-paragraphs 2(a) to (c) of Schedule 1, but who none the less are suitably qualified, perhaps from academic legal experience or judicial experience gained in another jurisdiction.

I should, of course, be clear that we are accepting lay members, but we are not prepared to accept the amendment we shall come to later—Amendment No. 46—that requires all cases to be heard by panels of three members.

I hope, therefore, that these amendments will prove uncontroversial. I ask the House to agree to Amendments Nos. 28E, 61A, 61B and 61C. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 28E to Lords Amendment No. 28.—(Lord Filkin.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I rise simply to thank the Minister for responding so thoughtfully to the amendments that we tabled to include lay members in the new tribunal system.

The Minister is right in saying that, strictly speaking, the issues raised by Amendment No. 46A fall outside the group, but, nevertheless, I think it appropriate for me to say something about that matter now. I promise not to repeat myself when the Minister rises to introduce the line of amendments beginning with Amendment No. 46 later on.

I should like to suggest, respectfully, that Amendment No. 46A, if not quite meeting the principle of three-member tribunals that we sought on Report, is nevertheless a good compromise. It gives the president of the tribunal the discretion, where appropriate, in cases which raise issues of legal or factual complexity, to have tribunals of more than one member while recognising that issues of cost cannot be entirely ignored when one is managing any form of public service. The Immigration Service is no different from any other public service in that respect. I recognise that the requirement of three-member tribunals in all circumstances could be too demanding a standard to meet. The drafting that the Minister has achieved, if I may say so, is in my view masterly. I should like to thank him very much indeed for the way in which he has responded to this issue.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, it is very welcome that the Government have responded to some of the concerns that were expressed at earlier stages of the Bill. I entirely accept the Minister's claim that this has been a listening exercise and that on the whole, with certain unfortunate exceptions, Ministers have been responsive to the views that were expressed in your Lordships' House.

I wish to ask the noble Lord only one question about the particular form in which these amendments are couched. As regards Amendment No. 61A, who will exercise this opinion when the Lord Chancellor is no longer sitting on the Woolsack? That event is not far distant in time and I should have thought we might have anticipated it in the drafting.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I wonder where the noble Lord, Lord Avebury, was yesterday when your Lordships' House voted on this matter.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am delighted to accept the inference of the noble Lord, Lord Avebury, that on this matter we are talking about "when" not "if", as I am sure is the case. The answer to the question asked by the noble Lord, Lord Kingsland, is that those responsibilities will be picked up by whatever successor authority the House so decides, but clearly the Government's intention is that it is picked up by the relevant Secretary of State, as we discussed in our many fulsome debates yesterday.

On Question, Motion agreed to.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

rose to move that the House do agree with the Commons in their Amendments Nos. 28F and 28G to Lords Amendment No. 28, and do propose Amendment No. 28H as a consequential amendment to Lords Amendment No. 28:

28H Leave out from beginning of line 111 to beginning of line 114 and insert—

"(1) On the application of an appellant under section 103A,"

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, this is one of the most complex, interesting and potentially controversial issues that we have discussed on this Bill.

At Lords Third Reading, I set out the problem we are trying to address with the proposals for a new legal aid scheme, and more broadly the move to a single tier tribunal. I sought to set out the issues that set the coloration to that: namely, that legal aid costs had quadrupled since 1998–99; that the average cost of an individual pursuing an appeal to the end of the process is some £4,000; and that these are unjustifiable amounts when only one in 10 of cases results in a different outcome.

I also signalled that the appeal process, if run to the full, could easily run to 62 weeks or more from beginning to end. I set that in the context that while undoubtedly genuine asylum claimants come to our shores, and it is our responsibility as a state to look at their cases fairly, we are also aware that a massive amount of trafficking of people goes on, as I instanced in the relevant debate.

As it stands, the system leads to delay and expense. There is concern that a slow process and an uncertain ability to bring it rapidly to a conclusion and to return people from whence they came feeds the traffickers' business and makes it easier for them to get people to pay remarkably high sums of money to be brought here.

In introducing a new system we have to ensure that the exploitation does not continue. The new legal aid arrangements are central to achieving that. They will stop weak applications from flooding the High Court which leads to the cycle of delay, while ensuring at the same time that the interests of justice are met.

The new scheme that we are bringing forward, which is different from the one that we discussed at Third Reading—again, we listened to the arguments put forward on this matter—will be a system of retrospective funding. We are not removing legal aid for the review and reconsideration but we are clear that lawyers have to take a part in making judgments about whether cases are meritorious. While lawyers will not know until the end of the process, when the judge makes his order, whether they will receive legal aid, good lawyers already make such judgments. The system that we are constructing will try to ensure that all lawyers make the kind of judgments that a good lawyer does in such circumstances.

However, in introducing a scheme involving retrospective funding, we recognise that the focus of the scheme should be on merit and not just success. At Third Reading I therefore agreed with the noble Lord, Lord Kingsland, on this point—we tested each other across the Dispatch Box to make sure there was no misunderstanding and we managed to reduce most if not all of the misunderstanding—when he signalled that he would like to see a system based on a "robust merits test". There appeared, therefore, to be no issue of principle between us on that; it was a matter of how one applied that.

This has always been the Government's intention. It became apparent at Third Reading that perhaps there were different ways of achieving that objective from the one that we had advanced to the House which clearly caused unhappiness on the part of some noble Lords. I do not think that "unhappiness" is too sharp a word. Therefore, I hope that the amendments which we brought forward in another place are seen as very much four-square with what I signalled in broad terms at Third Reading.

Amendment No. 28F removes the provision for variable fees to be paid dependent on the result of the reconsideration. Amendment No. 28G links the award of legal aid more explicitly to an applicant's prospects of success at the time the application was made; that is, whether the case had significant merit such that the lawyer was right to pursue it in a system based on merit. In a system based on merit that is fair. This test does not ask lawyers to pre-empt the decision of the tribunal; it simply asks them carefully to assess whether a case has merit. If the judgment they have made is sound, which is reasonable to expect, legal aid will be paid.

We were brought to that conclusion by thoughtfulness by counsel that the best way of ensuring justice was that the tribunal should decide whether legal aid should be paid, not in a sense simply by what happened at the end, but by looking at the case as it was at the time that the lawyer had to make the judgment at the beginning of the process. That seemed a very fair point, so that hindsight is not applied to the decision but that it can be said that, when the lawyer had to make the decision, the question was whether the case had merit.

The amendments meet many of the concerns raised. I recognise that they did not respond to all of the noble Lord's concerns, which is why, following discussion, the Government proposed Amendment No. 28H. It enables the High Court to award legal aid for the review application even if no reconsideration order or Court of Appeal referral has been made.

It is important to be clear exactly what Amendment No. 28H means. It remains our intention that the High Court's power to award legal aid will be used only in exceptional cases. In the majority of cases, the tribunal will be best placed to make the decision on funding at the reconsideration. At that stage, the tribunal will possess the relevant information to decide whether, when the review application was made, the lawyer was right to have pursued the case. By comparison, the High Court will simply consider, on the papers, whether there may have been an error of law—in other words, whether the case should be looked at further.

Although we accept that there may be circumstances where it is appropriate for the High Court to award legal aid for a review application, even if an order for reconsideration or a referral is not made, regulations will be made to prescribe tightly when that power can be exercised. An example of when the power might be used is when a reference to the Court of Appeal is made. Another might be when a review application which has good prospects of success is rendered unsuccessful following a lead decision of a case, which had not been decided at the time the application was made.

We are committed to a system based on merit. Payment will not be conditional on success but, if we are to weed out the weak applications, we have to incentivise the system in the way in which we have done. Having listened to the House, we believe that we have a system that achieves what those in most if not all parts of the House feel are, for good reason, the objectives of government policy. I therefore urge the House to agree to Amendments Nos. 28F, 28G and 28H.

Moved, That the House do agree with the Commons in their Amendments Nos. 28F and 28G to Lords Amendment No. 28, and do propose Amendment No. 28H as a consequential amendment to Lords Amendment No. 28.—(Lord Filkin.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, again, I am most grateful to the Minister for his explanation of the amendments. As the noble Lord said, we did not vote on our amendments to remove the conditional fee system at Third Reading on the basis of certain undertakings that he gave. He has met those undertakings in full for which I am extremely grateful. As this is the last group of amendments on which I shall speak, I thank him very much for his co-operation throughout the whole process.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, although I regret that the Government did not accept our important arguments on giving legal aid on a somewhat wider basis than is now proposed, the amendments are, at any rate, some improvement on the previous position. In the circumstances, given that there would be no prospect of our succeeding on any further vote on the matter, we do not oppose the amendment.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, having indicated that I very much shared the concerns underlying the exchanges that took place last week, I want to record that I think that the Minister's response is extremely positive and welcome. I express my thanks to him for that.

On Question, Motion agreed to.

:TITLE3:LORDS AMENDMENTS

42 Schedule 1, page 32, line 17, after "legal" insert "or lay"

43 Page 32, line 18, leave out first "as"

44 Page 32, line 18, leave out from "appointment" to end of line 19

The Commons disagree to these amendments and to Lords Amendment No. 61, but propose Amendments Nos. 61A to 61C in lieu thereof.

61A Page 32, line 19, at end insert—

"or,

(e) in the Lord Chancellor's opinion, has non-legal experience which makes him suitable for appointment.

(2) A person appointed under sub-paragraph (1)(a) to (d) shall be known as a legally qualified member of the Tribunal."

61B Page 37, line 5, after "a", insert "legally qualified"

61C Page 41, line 3, leave out paragraph 28 and insert—

"28 Where immediately before commencement a person is a member of the Immigration Appeal Tribunal—

(a) he shall be treated as having been appointed as a member of the Asylum and Immigration Tribunal under paragraph 1 of Schedule 4 to that Act immediately after commencement, and

(b) if he was a legally qualified member of the Immigration Appeal Tribunal (within the meaning of Schedule 5 to that Act) he shall be treated as having been appointed as a legally qualified member of the Asylum and Immigration Tribunal."

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that the House do not insist on its Amendments Nos. 42 to 44 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 61A to 61C in lieu thereof. I spoke to the amendments with Amendment No. 28E.

Moved accordingly, and, on Question, Motion agreed to.

:TITLE3:LORDS AMENDMENT

46 Page 33, line 8, leave out from "by" to end of line 9 and insert "three members unless the President from time to time directs"

The Commons disagree to this amendment but propose the following amendment to the words so restored to the Bill—

46A Page 33, line 9, after "President", insert ", having regard to the complexity and other circumstances of particular cases or classes of case,"

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that the House do not insist on its Amendment No. 46 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 46A to the words so restored to the Bill.

Moved accordingly, and, on Question, Motion agreed to.

:TITLE3:LORDS AMENDMENT

61 Schedule 2, page 41, line 3, at end insert "or lay"

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that the House do not insist on its Amendment No. 61, to which the Commons have disagreed. I spoke to the amendment with Amendment No. 28E.

Moved accordingly, and, on Question, Motion agreed to.

:TITLE3:LORDS AMENDMENT

62 Page 41, line 14, at end insert—

"30 (1) This paragraph shall have effect in relation to applications under section 103A(1) or for permission under section 103A(4)(b) made—

(a) during the period beginning with commencement and ending with such date as may be appointed by order of the Lord Chancellor, and

(b) during any such later period as may be appointed by order of the Lord Chancellor.

(2) An application in relation to which this paragraph has effect shall be considered by a member of the Asylum and Immigration Tribunal (in accordance with arrangements under paragraph 8(1) of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (inserted by Schedule 1 above)).

(3) For the purposes of sub-paragraph (2)—

(a) references in section 103A to the appropriate court shall be taken as references to the member of the Tribunal who is considering the application or who is to consider the application,

(b) rules of court made for the purpose of section 103A(4)(a) in relation to the court to which an application is made shall have effect in relation to the application despite the fact that it is considered outside the appropriate court, and

(c) section 103A(6) shall be subject to sub-paragraph (5) below.

(4) Where a member of the Tribunal considers an application under section 103A(1) or 103A(4)(b) by virtue of this paragraph—

(a) he may make an order under section 103A(1) or grant permission under section 103A(4)(b), and

(b) if he does not propose to make an order or grant permission, he shall notify the appropriate court and the applicant.

(5) Where notice is given under sub-paragraph (4)(b)—

(a) the applicant may notify the appropriate court that he wishes the court to consider his application under section 103A(1) or 103A(4)(b),

(b) the notification must be given within the period of 10 working days beginning with the date on which the applicant is treated, in accordance with rules under section 106 of the Nationality, Immigration and Asylum Act 2002 (c. 41), as receiving the notice under sub-paragraph (4)(b) above, and

(c) the appropriate court shall consider the application under section 103A(1) or 103A(4)(b) if—

(i) the applicant has given notice in accordance with paragraphs (a) and (b) above, or

(ii) the applicant has given notice under paragraph (a) above outside the period specified in paragraph (b) above, but the appropriate court concludes that the application should be considered on the grounds that the notice could not reasonably practicably have been given within that period.

(6) Rules of court may specify days to be disregarded in applying sub-paragraph (5)(b).

(7) A member of the Tribunal considering an application under section 103A(1) by virtue of this paragraph may not make a reference under section 103C.

(8) An order under sub-paragraph (1)(a) or (b)—

(a) shall be made by statutory instrument,

(b) shall not be made unless the Lord Chancellor has consulted such persons as he thinks appropriate, and

(c) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

The Commons agree to this amendment with the following amendment—

62A Line 33, leave out "10 working" and insert "5"

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 62A to Lords Amendment No. 62. I spoke to the amendment with Amendment No. 28A.

Moved, That the House do agree with the Commons in their Amendment No. 62A to Lords Amendment No. 62.—(Lord Filkin.)

[Amendment No. 62B not moved.]

On Question, Motion agreed to.