Report (1st Day)

Part of Immigration Bill – in the House of Lords at 6:15 pm on 1st April 2014.

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Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords 6:15 pm, 1st April 2014

My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understands that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously that matter could be appealed to the tribunal.

I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I am not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and my noble and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.

I am always wary—as was the noble Baroness, Lady Smith—of using football analogies, but they were mentioned by my noble friend in moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, “By the way, we will just go to the referee and say, ‘If we are having a penalty shoot-out, it will do for the other cup tie that we are to play next week. We will just do the two in one’”. If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where a person is going to be denied the opportunity to bring a separate case on a new matter. They would still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal route would still be open to them.

The proposed measure could create an incentive for appellants to raise new matters at a late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent—if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against a decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that that is a case of being a judge in one’s own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.

When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised.