My Lords, having spent some five years as Treasury counsel, periodically attempting to remove illegal immigrants, and then having spent some decades as a judge lamenting the absurdly over-elaborate appeals systems under which those resisting removal could string out a whole series of appeals for years on end, I can readily see—to use an inelegant colloquialism—where the Government are coming from in Clause 15(5). It is now some dozen years since the so-called one-stop appeal was sought to be introduced. Now, of course, the Government are intent, yet more fundamentally, on substituting in large part administrative reviews for appeals in all but the comparatively few cases where truly basic freedoms are at issue: refugee status, humanitarian protection and human rights.
For my part, I am not against this general reduction in appeal rights, although I may not go quite so far as to vote against the next proposed amendment, which is to remove the entirety of Clause 15. Nor am I against, as I made plain in Committee, what is now Clause 18, which to some extent may be expected to constrain the court’s readiness to allow Article 8 considerations to frustrate attempts to remove foreign criminals and others who are here in violation of immigration controls. I interpolate only that Clause 18 will of course be informed by Amendment 58, tabled by the Minister and the noble Earl, Lord Listowel, to safeguard the welfare of children.
I am, however, strongly against Clause 15(5), to which this amendment goes. This provision seems to me to represent a bridge too far. The noble Baroness, Lady Berridge, has already clearly explained the basic objections to this provision and has noted that serious reservations have been expressed about it: expressed twice now by the Joint Committee on Human Rights and yet more recently by the Select Committee on the Constitution. It would not be helpful for me to restate all these objections in detail. Suffice it to say that it seems intrinsically objectionable for the Government, one of the parties before the tribunal on the appeal, themselves to have the last word with regard to what the tribunal may or may not consider.
By all means let the Government object to a new ground of appeal or some new reason for the appellant seeking to stay if they are genuinely unable to deal with it or, indeed, if they are genuinely unable to reach and declare their own decision on it by the time it is raised. Indeed, the tribunal may well hold that the Government are entitled to an adjournment if, in truth, they are prejudiced by the point being taken late. However, it is quite another thing to say, as Clause 15(5) does, that the Government can deny the tribunal the right to deal with a new matter on the appeal before it, and thus force the appellant—assuming that he wishes to pursue the point—to start all over again, with all the delay and, as we have heard, the prohibitive expense that that would necessarily involve. That, I respectfully repeat, goes altogether too far. Your Lordships should prefer instead wording which—if not here in perfect formulation—is in some way akin to that here proposed, which, heaven knows, is a modest enough power to confer on the tribunal itself.