My Lords, I declare an interest as a trustee of the think tank British Future. I apologise that this my first speech in your Lordships’ House on the Bill although I am a member of the Joint Committee on Human Rights and have been involved in considering this Bill from an early stage. I have been grateful for the comments of my noble and learned colleagues, and I accept that the amendment is not perfect. It was intended to raise this matter in Committee, but unfortunately your Lordships went rather quickly and a time limit was missed.
I thank the Minister for the lengthy and detailed correspondence that he has engaged in with the Joint Committee on Human Rights. As I hope noble Lords will realise, there are important points of principle in Amendment 10. There is no suspicion of the matters that were properly raised by the noble Baroness, Lady Smith. I think all parties share the concern about the difficulties that are faced in deporting foreign criminals, but that is not part of the principled and mature correspondence that has passed between the JCHR and the Government.
This amendment reflects the view of the Joint Committee on Human Rights and provides a more appropriate solution to a problem that it is accepted has arisen in the tribunal. The tribunal hears appeals from immigration decisions made by the Home Office. The Bill in my view breaches a constitutional principle that you cannot be both a party to a case and determine how it is heard. In colloquial terms, you cannot be both the football referee and the captain of one of the teams.
The problem that has arisen in the tribunal is that the law changed in 2002 and introduced the one-stop appeal notice, which meant, sensibly, that the tribunal should deal with all the immigration issues concerning the person before it in one hearing. This has largely prevented the proliferation of appeals from different claims made consecutively by the same person that was bogging down the immigration appeals system.
However, following the statutory instructions to hear everything together, the tribunal has developed the practice of hearing new matters that have arisen, perhaps even on the morning of the hearing, there and then. The new matter is determined by the tribunal without the Secretary of State first having made a decision on it.
I always find it hard to grasp issues in the abstract, and I thank the practitioners who make their living going daily in and out of the First-tier Tribunal for having helped me enormously in the past few days. A typical case might be where a person is appealing a Home Office decision to refuse an asylum case; for instance, because they fear persecution as a Baha’i believer from Iran. However, they come to the hearing with a new wife who is a British citizen, meaning that they now have a Human Rights Act claim in addition to the asylum claim. Sometimes the tribunal will adjourn the asylum appeal to give the Secretary of State an opportunity to make a decision on the new claim for family life, but it may say that as everyone is there, all the evidence is present in court and the appellant has a serious illness it should get on with it and decide the matter there and then.
It is this situation that the Government wish the Bill to change. Section 84(5) will meant that the tribunal must not consider the new matter—the claim to family life—unless the Secretary of State has given consent for it to do so, so a party to the proceedings has to consent to the judge hearing that new matter. The scope of the tribunal’s jurisdiction is dependent on the consent of the respondent to the appeal. If I am counsel in the case, I feel I must turn away from the judge towards my opponent and start making submissions, pleading for consent for the new matter to be raised. That would be a most unusual situation. That was conceded by the Government in a response to a question by the Joint Committee, in which they stated,
“as far as the Home Office is aware there are no other similar provisions in other statutory contexts”.
This would be new law.
There has been one other attempt by the Government to have control over the way the court operates when they are party to proceedings. As your Lordships may remember, in the Justice and Security Bill the Government, as party to the proceedings, tried to determine whether a closed material procedure would be used. This Chamber said that that was a matter for the judge to determine, and the Government conceded the point.
That opposing sides require an independent adjudicator in charge of proceedings is a fundamental common law principle. It extends across the board to disciplinary proceedings for staff in the workplace. Imagine if FIFA were to say that some of the referee’s powers were indeed held by the captain of one of the teams.
I also struggle with the assumption underlying the Bill that it is always the fault of the appellant or their legal representatives that the tribunal has new matter to deal with at the last minute. Imagine if my client is a gay Ugandan claiming persecution if he were to return home. He puts all his claims in the one-stop notice, but the Home Secretary refuses grounds for protection. He comes to a pre-hearing conference at my chambers with a partner. He now has a family life claim, so I want the Secretary of State to make a decision on this, and I want the hearing vacated. I want my client to have, in effect, two bites at the cherry: a decision from which, if we are unsuccessful, he can appeal. I get the evidence from my client in that fortnight, and I take to the phones and to e-mail. I try to get hold of the Home Office in order to vacate the hearing, but I cannot do so, so everyone has to turn up at the tribunal, and unfortunately the presenting officer first saw the file at 5 pm the night before. Why should the court not say that it will deal with all this today? It is the fault of the Home Office as it could have had the opportunity of making a new decision if it had picked up the phone. By the way, since I saw my client in conference two weeks earlier, he has developed cancer. In these rare situations, the tribunal should be able to determine what is just in the matter between the parties. It should not be left to my opponent to have to consent.
The Government give four reasons for their needing this power to consent. I shall deal with them briefly. First, they are being usurped as the primary decision-maker on new matters. The fallacy in this argument is that, due to sometimes poor-quality decision-making at first instance, the tribunal has become the primary decision-maker in all but name. To give you an example, a Christian convert from Iran is asked by the Home Office questions such as, “What is Lent?”, which is unknown in Iran. It refuses permission. By the time the new evidence is on appeal, you have half a church congregation, the vicar, the baptismal certificate and all kinds of testimony, so more than 95% of the evidence is completely new. In all but name, that is being the primary decision-maker.
Secondly, the Government argue that the tribunal is a statutory creature and not like a court. As the noble and learned Baroness, Lady Hale, said in Saleem v Secretary of State for the Home Department:
“In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts”.
Thirdly, the Government say that they are not stopping the claim being determined; it is just a matter of the timing of the decision. In the example I outlined where illness befalls someone, timing can be critical. The tribunal should also be the final arbiter on the timing in this regard. I am also told by practitioners that if, like a game of snakes and ladders, you have to go right back to the beginning to take the new matter, that can mean many months of delay and you also incur a fee, which I am told is now £518, to take that new matter back.
Fourthly, the assertion is that the appellants are still playing the system. Yes, some are, but many are not represented, and the fact that they do not know that their claim that they fear for their life from attack in a family feud if they were to return to, say, Sri Lanka is not an asylum claim but a human rights claim can be forgiven. Will the Minister outline who determines what is and is not a new matter? It is often not clear on the paperwork, as in the example that I have outlined. Is that or is that not a new matter? We have never had to plead the law. If all the facts are there, has it not already been raised? Do we not run the risk of mini-trials on what is and is not a new matter? Of course, I can ask for the decision not to consent to be judicially reviewed. I thought that satellite judicial review went against what the Government were seeking to achieve through their changes.
I agree with my noble friend the Minister that the tribunal needs restrictions on these new matters and that it has perhaps done more than what the statutory one-stop appeal envisaged. However, there are rare cases where justice demands that a new matter is heard, and they should have a narrowly defined discretion in which to hear those cases.
As I say, Amendment 10 is not perfectly drafted and I am aware that it might not quite hit the spot, but I hope that my noble friend will respond and think again on the important constitutional principle that is raised by this. I hope that Her Majesty’s Government will come back with a perfectly drafted, tightly worded amendment at Third Reading, rightly restoring the place of the tribunal in controlling its own jurisdiction—if not, merely for emphasis, we could adjourn for 30 minutes and tour the Victoria Tower. There is not another example of this on our statute books at present. I ask noble Lords not to create such a precedent. I beg to move.