Clause 10 - Unification of appeal system

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 9:10 am on 20th January 2004.

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Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 9:10 am, 20th January 2004

I beg to move amendment No. 101, inclause 10, page 10, line 11, at end insert— '(1A) A request under subsection (1) must assert that the Tribunal's decision would have been different but for a clear error of law by the Tribunal identified in the request. (1B) A review shall consider only the assertion made in accordance with subsection (1A).'. The Chairman: With this we may discuss the following:

Government amendments Nos. 103 and 104.

Amendment No. 41, in

clause 10, page 10, leave out lines 18 to 21.

Government amendments Nos. 105, 42, 107, 110, 111 and 114 to 116.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

This is the first opportunity that I have had to welcome you to the Chair, Mr. Taylor.

Clause 10 has been the subject of much debate in the House, the press and the country. It is therefore appropriate that, before moving on to the Government amendments, I outline why we believe that it is important to configure our appeal system in this way, balancing fairness and justice against the abuse of process that is perceived in the system. I shall take some time to explain the amendments in the context of the changes that we are making to the appeal system. To do that, it is right for me to return to the fundamentals of our constitutional arrangements, which I suspect will be raised today.

The fundamental question for us when considering the structure of the Immigration Appellate Authority and the Immigration Appeal Tribunal is why we have tribunals in the first place. The reason is set out in Wade and Forsyth's ''Administrative Law'', a book that lawyers or law students will understand. We have tribunals to ensure that people get a speedier, cheaper and more accessible form of justice than they might get in the higher courts. Over time, tribunals establish a deep specialism in their field, enabling them to deal with more cases more expertly and rapidly.

The new system is consistent with those fundamental principles of our tribunal system, which we have had since the war. The great Attlee Government began the process of our tribunal system.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I welcome the Minister. He mentioned the need for a speedy system. Does he accept that the current delays are principally administrative delays? It takes two months or more to get an initial decision, three months or more to get to the existing adjudicator and three months or more to get from there to the tribunal. Is not the problem that the Minister needs to deal with an administrative one, and in any case why does it need to be dealt with so quickly after the introduction of the Nationality, Immigration and Asylum Act 2002?

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

On a point of order, Mr. Taylor. The heating in this Room seems to have been switched on for the first time since our consideration of the Bill began. May we have your permission to remove our jackets?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I shall make some progress and deal with the issues that the hon. Member for Woking (Mr. Malins) raised. Clearly, the Government believe—I think that it is also the perception in our constituencies—that the many layers of justice and tribunals in this field mean that those who are disingenuous in their applications can play the system, which slows it down.

We believe in and support the fundamentals of our system, and it is right that we should continually revisit the system to ensure that it is working to best effect and in the way in which taxpayers in our constituencies would expect. It is a balancing act. We must have a fair system but we simply cannot provide disingenuous claimants with the opportunity to abuse the appellate system.

I should point out that only the immigration and asylum system contains an incentive to delay. As hon. Members will know, in every other area of law, the claimant wants to reach the judgment, and with it finality, as soon as possible. Immigration and asylum is the great exception. Hon. Members will know from constituency cases that many who are able to stay in this country do so ultimately on the humanitarian or compassionate grounds that they have been here for some time. We need a system that is speedier but which balances that with fairness and justice. It must deal with the incentive to delay, which exists only in this area of law.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I think that we all understand the Minister's point that asylum and immigration law is different in that people may want to delay their case. However, when applications are made, the Immigration Appeal Tribunal does not have problems in deciding which cases to examine. For example, although almost 23,000 people asked for permission to go to the IAT last year, it whittled that down to fewer than 7,000. It does not take a long time to do that, as weak cases are dismissed without even getting over the first hurdle.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

My hon. Friend—who is genuinely my friend as my constituency neighbours his—makes an important case about the expertise in the IAT, and we

should be proud of and pleased with the men and women who serve in it. That is why, in the new system, those men and women will continue to serve us in a single tier. However, we must look beyond the IAT to the High Court, the Court of Appeal and the many challenges and loop-backs in the system. We must also consider the fundamentals that I talked about earlier and the incentive to delay and to use that system. Ultimately, only 3 to 4 per cent. of the decisions that reach the IAT are overturned. I shall discuss that point further when we reach new section 108A, which deals with judicial review.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

That figure has been quoted before by Ministers, but it is untrue that only 3 per cent. of the cases that reach the IAT are overturned. Last year, 6,920 appeals were heard by the tribunal, of which 5,565 were determined. Some 620 were allowed, while another 2,700 were remitted back to adjudicators for further determination, some of which will be allowed in due course. The figure of 3 per cent. is obtained by comparing the number of people who win at IAT with the original number of applications.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

One has to take out cases that are remitted back and to look at decisions that are overturned by the IAT. That is how we reach the 3 to 4 per cent. figure. The fact that the IAT has heard the matter does not necessarily mean that the applicant received a favourable decision. That is the distinction that we have sought to make. The briefing from the Immigration Law Practitioners Association has not drilled down to the basis of those few decisions that are overturned, which come to hundreds rather than many thousands.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

Can we perhaps put it another way and see whether the Minister will agree to this figure? Does he agree that the percentage of cases that are allowed to go to appeal is much higher than 3 per cent. and is around 23 per cent. or higher?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I agree absolutely. I have no problem with that figure, but we have to go back to the fundamentals and ask why the appeal is made. There can be many reasons. It can be because the initial adjudicator made a serious error of fact in his decision. He may have found that someone was from Ethiopia rather than Somalia. It can be because of an error of law that does not lead to the eventual overturning of the case. The hon. Gentleman is right in essence, but the fact that an applicant made an appeal does not mean that he was ultimately successful. We have to look at the totality, if I may use that word, of the whole system. We have to look beyond the IAT upwards and recognise that people are frequently looping back and playing the system.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

We must clear up the issue of the success rate of appeals once and for all. Those figures are misleading. The Home Secretary said that only 3

per cent. of appeals to the IAT are successful but a briefing based on figures produced by the House of Commons Library states:

''Appeals to the IAT can only be made with permission. Of cases where permission to appeal is granted, 11 per cent. are successful and a further 48 per cent. are remitted for a hearing . . . The overall success rate is thus 23 per cent., rather than the 3 per cent. cited by the Home Secretary.''

Those are official figures. Does the Minister accept them?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am afraid that I do not accept them. I am not sure where the hon. Gentleman got his information. I suspect that success is being interpreted differently. Success does not mean being remitted back. Success does not mean being looped back upwards—cases can go to the High Court, too. Success is appeals where the original decision is overturned. That is where we get the figure of between 3 and 4 per cent.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I want to make some progress. We have debated that matter and we have not moved forward. I will take interventions later.

I was outlining that there can be between five and 13 stages before finality in a case. It is right for me to go through some of those stages. At stage one, the applicant makes an appeal before an adjudicator. At stage two, on receipt of the adjudicator's determination, a party to the appeal may, with permission, appeal to the Immigration Appeal Tribunal against the adjudicator's determination on a point of law.

At stage three, if permission to appeal is granted, there is an appeal before the Immigration Appeal Tribunal, which will decide to allow the appeal, dismiss it or if necessary remit it back to an adjudicator. Alternatively, stage three may be reached when the party is refused permission to appeal and therefore challenges that decision through the High Court or the Court of Session.

At stage four, the Immigration Appeal Tribunal decides that it cannot determine the appeal and remits the case. About 50 per cent. of appeals before the Immigration Appeal Tribunal are remitted. Stage four can also be reached if the case has been successful at overturning the permission decision by statutory review, which has gone to the High Court, and the case can then go back to the Immigration Appeal Tribunal.

At stage five, depending on the route the case has taken, if the case is successful at statutory review and subsequently permission has been granted, there may be an appeal before the Immigration Appeal Tribunal or, if the case is remitted and heard and determined by an adjudicator, there may be an application for permission to appeal to the Immigration Appeal Tribunal on a point of law.

I am outlining the numerous ways in which an applicant can go round and round and round in the system at every stage, frequently using statutory review to go to the High Court and to challenge every decision throughout the process.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am sure that the picture the Minister paints is, in some rare cases, a true one, but I imagine that, in the great mass of cases, 14 stages of appeal is pretty far-fetched. The Home Office is not backwards in coming forwards with appeals if it thinks it appropriate. I trust that when the Government run through this Bill they will restrict themselves, just as much as they restrict asylum seekers, from making fruitless appeals. The answer is not to worry about the statistics, on which we have had an interesting exchange, nor about the number of stages that the Minister is reciting. The thing to get hold of is the ability of the court system to remove from its appellate system unnecessary and frivolous appeals, to increase the amount of judicial discipline that can be brought into the system, to restrict by requiring—

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Not entirely. I think that where the hon. and learned Gentleman was heading was that we should have the right quality of judges in the new tribunal. I hope to be able to outline why I think that is the case. It is right to concentrate on the stages because the Government must continue to consider whether those stages rightly apply to the asylum and immigration system. If we look back just 10 years, because of global conditions, the state of Britain's economy and other things, the number of newly arrived people claiming asylum has risen substantially. Sadly, the number of people claiming asylum who turn out not to have genuine asylum claims under the convention has risen. Therefore, it is right to look at the process and the systems that we establish to ensure that we have the appropriate system for the circumstances, and that we balance it against the fairness and justice that we all want to uphold.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

The Minister said that the number of asylum seekers and claims is on the increase. I thought that the Government had miraculously solved that problem and that there had been a massive reduction. If it is the case that there has been a reduction, does the Minister believe that that reduction will continue over the next couple of years? If that trend continues, are the measures really necessary?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 9:30 am, 20th January 2004

I hope that the hon. Gentleman's hearing improves, because I was talking about the past ten years. It is a fact that the number of applications is decreasing, but it is being reduced from some height because of the shambles that we inherited when we came into Government in 1997.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

On a point of order, Mr. Taylor. The Minister has now been on his feet for 20 minutes, but has yet to mention the amendments. The debate so far has ranged over an extremely wide area, and I hope that that will not reduce the scope for the Committee to have a stand part debate after the debate on the amendments.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

I thank the hon. Gentleman for the point of order, which I shall certainly consider when we reach the stage of the stand part debate. At the beginning of our consideration of this large group of amendments, the Minister indicated his intention to range relatively widely in his introductory speech. However, I hope that he will be able to move fairly quickly to the specific amendments under consideration.

Mr. Lammy rose—

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The Minister has been remarking on the number of asylum applications. Will he tell the Committee about the numbers who, in their claims to the adjudicators, cite sections 3 and 8 of the Human Rights Act 1998? Will he also tell us whether it is true that, over the past three years, some 40,000 people have succeeded in gaining exceptional leave to remain on the basis of human rights claims only?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I have been encouraged to make some progress, so I will not deal with the hon. Gentleman's point about human rights. There will be an opportunity to discuss human rights during the debate on the amendment tabled by the hon. Member for Isle of Wight (Mr. Turner).

I have tried to outline the complex interaction of different layers of appeal. I think that that illustrates how the system can be played. Under the new system, appellants will have the right to appeal to the tribunal against the decision made by the immigration and nationality directorate or the entry clearance officer, but they will not be able to continue to appeal through the many different stages of the appellate system and the higher courts.

The structure of the single tier means that the new tribunal will be flexible. Most hearings will be heard by single immigration judges, but more complex cases will be heard by panels. Its flexibility will ensure that each case receives the most appropriate level of judicial consideration. The senior judiciary in the Immigration Appellate Authority have been consulted on the structure of the new arrangements.

We envisage that the new tribunal will make use of the existing judiciary. The president will be a High Court judge. It was always our intention to ensure that that was the case, which is why we tabled amendment No. 113. The president will be supported by at least one deputy president. The intention is that there should be two deputy presidents, who will take identifiable roles within the new tribunal. They will have judicial experience comparable to that of senior circuit judges.

I am in no doubt—I am about to move on to discussion of the amendments—that we are creating a simpler system, which will provide an independent and effective remedy, far fewer stages of appeal, fewer opportunities for delay and earlier finality within the

system. That will benefit the genuine asylum seeker. Appeals will receive the most appropriate level of judicial consideration.

Government amendments Nos. 101, 103 to 105, 107, 110, 111, and 114 to 116 bring the Bill closer into line with our policy intentions for tribunal review, as does Government amendment No. 42. Amendment No. 101 inserts new subsections (1A) and (1B) into proposed new section 105A of the Nationality, Immigration and Asylum Act 2002. New subsection (1A) states that a request for a review must contain the assertion that

''the Tribunal's decision would have been different but for a clear error of law by the Tribunal identified in the request.''

New subsection (1B) requires the tribunal to consider ''only the assertion made'' in the request. The amendment clarifies the grounds on which the tribunal will consider a request for a review of its decision. It is right that the claimant should articulate at that stage, usually through his lawyer, the basis on which a ''clear error of law'' entitles the tribunal to reconsider the case on review.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

Can the Minister help with the phrasing of that particular amendment? It is odd to use the phrase ''clear error of law'', rather than simply ''error of law''. Is it the Government's intention, by inserting the word ''clear'', to narrow down the tribunal's ability to consider a case if it is unsure whether there has been an error of law? Is it their intention to narrow down the option of appealing in such a case?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

When the definition of ''error of law'' was discussed in another place, there was debate about whether to use the word ''clear'' or the word ''manifest''. Ostensibly, the Government's position is that an ''error of law'' should be significant enough to lead to the decision being reviewed. Some errors of law do not lead to that stage of the judicial process. We have used the word ''clear'', but we could have used the word ''manifest''. However, we are indicating that an error of law should be significant if it is to amount to the possibility of the decision being overturned.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I am now slightly more confused. I am only a layman, but surely something is either an error of law or it is not. Is the Minister saying that some errors of law are greater than others? That is a vague line to follow. Surely the principle is that an error in law should entitle a claimant to the opportunity for a review.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I do not want to have to refer the hon. Gentleman to the casebooks, but what I am saying is patently obvious. By requiring there to be a ''clear error of law'', the test focuses attention on errors that are obvious rather than opaque, hidden or artificial. Judges make such considerations all the time. Having identified an error, the tribunal would consider whether, but for that error, its decision would have been different.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

First, can the Minister tell us, with specific examples, what the difference is between an ''error of law'' and a ''clear error of law''? Secondly, can he confirm that the provisions allow no right of review in cases in which there has been an irregularity, a breach of natural justice, or a finding wholly against the weight of evidence?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

We shall consider in greater detail the hon. Gentleman's second point when we discuss proposed new section 108A of the Nationality, Immigration and Asylum Act. The first point is, quite rightly, an area for judicial determination but illustrates that the word ''clear'' means that the outcome would be different. In the amendment, I think that the word ''clear'' means ''ostensible''.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

I ask my hon. Friend to give further thought to this matter because, clearly, if the law would have resulted in a completely different decision, that would already have made the error significant, to use my hon. Friend's other word. I ask him to give some thought as to whether, in later proceedings, the word ''clear'' might beneficially be dropped.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am grateful to my hon. Friend. In using the words ''clear error of law'' rather than simply ''error of law'', the Government are mindful of the grounds of appeal that I indicated earlier had to be established. We want those grounds of appeal to include that ''clear error of law'' set out. It is not enough to suggest that some opaque, hidden, minor error of law would reach the standard that would result in the decision being overturned. A ''clear error of law'' relates to the grounds of appeal and is indicative of the substance of the claim. That is why we have used the word ''clear''. As I said earlier, there has been some debate in the courts about the word ''manifest''. That word exists in other Acts within common law jurisdiction. It is indicative of there being a serious outcome and of there being a clear and obvious error of law that would merit the consideration of the review tribunal.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The Minister's argument has about as much substance as the bogus statistics that he gave earlier. If an error of law—irrespective of whether it is clear, manifest or opaque—has caused a tribunal's decision to be overturned, that is the test in itself. As the hon. Member for Hemel Hempstead (Mr. McWalter) said, there is no need further to restrict the consideration of the appeal.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Unfortunately, the hon. Gentleman was listening, but failed to understand. I indicated what the grounds for appeal would be. The Government intend to ensure that those grounds are clear—or obvious or manifest—to the review panel

making the determination. That is the basis of the word ''clear''. I hope that that is obvious. I hope that the hon. Gentleman can get his head around that.

Amendments Nos. 42, 103, 104 and 107, which amend new section 105A, consequent amendments Nos. 110 to 112, which amend new section 108B, and amendments Nos. 114 to 116, which amend schedule 2, should all be read together. They remove the tribunal's power to order a rehearing by the tribunal of the appeal. Amendment 105 amends subsection (4) in new section 105A, and sets out the test applied by the tribunal when reviewing its appeal decision. The amended test provides that the tribunal will substitute another decision only if it is satisfied that the decision would have been different but for a ''clear error of law'' by the tribunal. That is a more effective and even-handed test than

''an erroneous construction or application of a provision of an Act'',

which was the test used previously.

Amendment No. 41 is unacceptable, because it would remove the criteria setting out on what grounds the tribunal will, on review, make its decision to uphold the original decision or substitute it with one of its own. It would therefore destroy the purpose of the clause. It would make unclear the basis on which the tribunal came to its decision on review, which should be clear. Appellants might use the amendment to seek access to a second full merits appeal before the tribunal, especially if it was read in conjunction with amendment No. 40. We are attempting to avoid that loophole and cases being remitted downwards, as currently happens.

The purpose of tribunal review is to provide an additional safeguard to claimants without the delay associated with the current system. The function of the tribunal review process is to ensure that decisions are corrected if they would have been different but for a clear error of law by the tribunal.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk 9:45 am, 20th January 2004

What body other than the tribunal controls the decisions of the tribunal?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am not sure that ''controlled'' is entirely the right word. In our system, judges are independent and reach determinations, but the decision, ultimately, lies with the president, and the ability to check the system, if there is a clear error, is through the review.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

The president of the tribunal?

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

In that case, I repeat my question. What body other than the tribunal can check or control—the Minister can choose his word—the decision of the tribunal? What other body can look at the decision?

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

If the answer is no, say so.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

It is there on the face of the Bill. Clearly, we are ousting judicial review, so the tribunal stands unto itself. I should have thought that that was obvious. That is very much the purpose of the Committee, and that concludes the amendments to clause 10.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The Minister, whom I welcome to these debates, talked a moment or two ago about the Government's purpose. I shall tell him in the shortest possible way the Government's purpose. Instead of focusing on their own shortcomings and on administrative matters, which a proper Government could deal with quite easily, they seek to blame everything on lawyers, the Court of Appeal and the House of Lords by ousting their jurisdiction, as if that will cure the problem. It will not.

I shall keep my introductory remarks relatively brief compared with the Minister's. Clause 10 is the most significant clause in the Bill, and in any asylum Bill that I can remember. It is as well to understand exactly what it does. First, it protects all decisions of the single-tier, new appellate authority from either judicial review or appeal to any higher court. Secondly, it protects from any judicial scrutiny a decision to deport a person from the United Kingdom, or any action in connection with such a decision.

The clause has been described by 16 members of Matrix Chambers—not including Cherie Booth, I imagine—as the most draconian ouster clause ever seen in parliamentary legislative practice. It has been roundly condemned by many respected organisations, including the General Council of the Bar, the Law Society, the Immigration Law Practitioners Association, the Refugee Council and the Immigration Advisory Service, which I had the honour of founding. It has been described by one senior judge as a clause that would

''no doubt appeal to Mr. Mugabe.''

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I can show the Minister the letter. That is the territory in which we are now moving—[Interruption.]

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

We should also remember that after the Nationality, Immigration and Asylum Act 2002 was passed, the Government described the system that was then introduced as a major landmark in the reform of nationality, immigration and asylum policy. A system of appeals came into being and was amended by the 2002 Act. However, a year later we have not had the opportunity to see whether it is working properly.

I recommend members of the Committee to read an article by Vernon Bogdanor, professor of politics and government at Oxford university, in The Times of 9 January. He described clause 10 as a ''constitutional outrage'', that was

''almost unprecedented in peacetime.''

He reminded us that

''even in the Second World War, Regulation 18B allowing the Home Secretary to detain suspected enemies of the country was reviewable by the courts. . . As Lord Denning declared in 1957: 'If tribunals were to be at liberty to exceed their jurisdiction without any check by the court, the rule of law would be at an end.'''

That is the background. We are dealing with a terribly significant clause. I suggest that the hearts of many Government Back Benchers are not in it, and that many of them should, and indeed will, feel ashamed of a Government who are, in one fell swoop, saying goodbye to any judicial review of a decision by the new tribunal. They are saying goodbye to the Court of Appeal and to the House of Lords.

Amendment No. 41 concerns the relatively narrow issue of the review. It would omit the part of the clause that permits the new tribunal to review its own decision. Under the clause, the asylum seeker has only one chance at a judicial intervention, rather than a minimum of two, as hitherto, which Leggatt recommended. There is only one chance of judicial intervention, and that chance is before the single-tier new appeal body—the new tribunal.

It is rather strange to permit that body to review its own decision. It gives the artificial and misleading message that there is some form of meaningful further judicial intervention following a perverse decision. The Minister slipped into rather careless language by referring to an appeal—there is no appeal against the tribunal's decision, merely a review.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. Gentleman slipped into ''Government speak'' there, but in one respect only, in referring to a judicial hearing. The hearing does not take place before the judiciary. The members of the tribunal are not the judiciary, however much the Government may spin them as being so. They may be arbiters or independent adjudicators, but they are not judges.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I understand the hon. Gentleman's point, but the Government would be right in replying that the tribunal is independent and is part of the judiciary in the sense that the adjudicators are utterly independent and appointed because of judicial qualifications. He is right that the tribunal is not part of the judiciary in the strict sense, as the High Court, the Court of Appeal and the House of Lords are. However, it is part of the judiciary in a wider sense, inasmuch as adjudicators and their counterparts, such as district judges and deputy district judges, could describe themselves as part of the judiciary.

It is misleading to give the outside world the impression that a review carried out by the same body that initially judged the case is an appeal; it is not.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Is the hon. Gentleman, in his opposition to the clause, entirely satisfied with the current situation, whereby an asylum seeker or their family can draw out the appeal process, sometimes for years on end, without a final conclusion being reached? Surely he and his party are opposed to that situation.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am not satisfied with the current situation, and I will tell the hon. Gentleman why—if he disputes anything I am about to say, he can intervene on me. The current situation involves at least two months before an initial decision is made, at least three or four months before a case reaches an adjudicator, and at least another three or four months before it reaches a tribunal. I am not satisfied with that. Administrative matters create that time scale; it is not down to abuse of the system by an asylum seeker. The Home Office is in part responsible, in relation to the papers that it has to lodge, for the conduct and pace of the appeal. It is not satisfactory that it sometimes takes a year or more before the tribunal is seized of the matter. The Government could and should be active on that issue.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Surely the time delays that the hon. Gentleman described are entirely the result of the volume of applications from asylum seekers that the Home Office must deal with. The Home Office does not voluntarily decide to extend appeals processes indefinitely.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

That amounts to an argument that we should forbid people from claiming asylum. The truth is that the problem is administrative. I shall give one example of the delays. Does the hon. Gentleman know that when an appearance takes place before an adjudicator, in a huge percentage of cases, the Home Office is not represented? That leads to more delay and the increased likelihood of an appeal being granted. That is Home Office inefficiency. Of course some people abuse the system, but they are small in number. The opportunities for perpetual judicial reviews come late in the proceedings. I am in favour of tightening procedures and making the system more efficient. The hon. Gentleman has no response to my point that, because of Government inefficiencies, it usually takes as long as a year to reach the tribunal stage.

I shall now speak briefly to amendment No. 41. Under the clause, the tribunal is asked to review its own decision. What does that mean in practice? Dozens of immigration judges are on the tribunal, but they are all part of the same group. A decision might be made by three sitting in one case, or one sitting in another, but what kind of appeal is it, when the applicant's only option is to ask the judge's friend in the next room to review the decision? That is not a genuine, independent appeal. If a body is asked to review its own decision, and broadly consists of the same people, it is unlikely frequently to overturn it. The reasons for that are so obvious that I do not need to mention them. The body is effectively a judge in its own court.

Amendment No. 41 would strike out the provision limiting the tribunal's scope of review, and substitute it with the decision not to permit a review unless it was satisfied that the earlier decision

''depended upon an erroneous construction or application of a provision of an Act.''

That is a severe restriction; it is too much. Surely if the tribunal is asked to review its own decision, it must not be over-constrained either in the way in which it

performs its duty or in what it can actually do. Therefore, I ask the Minister: is there a good reason for that restriction? If there is, can he tell us what it is? We have not heard it so far.

Amendment No. 42 was my amendment, and the Government have adopted it, with the Minister's signature appearing above mine. If nothing else, that shows the merits of an Opposition in Committee. In its current form, proposed new section 105A(5)(a) says that when reviewing its decision, the tribunal may order a rehearing only if it is satisfied that the earlier decision

''depended upon an erroneous construction or application of a provision of an Act''.

In effect, a rehearing would be better than a substitution. Again, my view was that the Bill was far too restricted. I am flattered that the Government have taken the same view on that narrow point and have adopted my amendment.

If I may, I should like to say something about Government amendments. Are the Government ashamed that they published a Bill in such great haste and then started to amend it themselves in Committee? If not, they ought to be. Did they not think that they had got it vaguely right in the first pace? This is a rehearing, so to speak, of the shambles that was the Bill of 2002, with literally hundreds of Government amendments flooding the Committee hours before the debates took place, giving hon. Members precious little time to discuss them, and giving the outside bodies no time whatever to discuss them. Hundreds of amendments were tabled as they went along. This clause—this critical clause, affecting the rights of so many people in this country—is following the same pattern. Even at this stage, we have 10 or a dozen Government amendments, on which they had in practice no time to consult. It is, frankly, a shambles in terms of efficiency, and merely a reflection of how Governments—and the Home Office in particular—run the so-called asylum system.

Amendment No. 101 says that a request to review

''must assert that the Tribunal's decision would have been different but for a clear error of law''.

As the hon. Member for Winchester (Mr. Oaten) and his colleague, the hon. Member for Somerton and Frome (Mr. Heath) asked earlier, what does the word ''clear'' mean here? The debate became farcical when hon. Members were discussing this. An error of law either exists, or it does not. If it exists, it must be clear, and ''clear'' is an unnecessary word. If it does not exist, it does not exist. What is the point of it? What does ''clear'' mean, as opposed to other words such as ''obvious'' or ''manifest''? It is difficult to say. We have come down to dictionary definitions. It would be better if the word ''clear'' were omitted.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 10:00 am, 20th January 2004

The hon. Gentleman knows, because of his legal experience, that all legislation of this kind is subject to interpretation and determination through the common law by our judicial officers and judges. He is well aware of that. It is disingenuous to claim

otherwise. We had some debate about the word ''clear'' and I said that it needed to be obvious. That is patently clear to him, yet he labours the point badly.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am not labouring the point badly at all. I am simply saying that the word ''clear'' is absolutely unnecessary. Let us remember, we are talking about what the applicant must assert. Surely, if the applicant asserts that the result would have been different but for an error of law, that is the assertion. Presumably the applicant goes on to give further and better particulars of the error of law and it is then a matter for the tribunal, on reviewing itself, to decide whether that error existed and had sufficient merit to warrant a further decision. The word ''clear'' adds nothing. Indeed, it rather tightens the clause and, in my view, makes it even more difficult for the aggrieved party to make an application.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

I am curious about the hon. Gentleman's argument. A few moments ago he said that the word ''clear'' added nothing to the Bill. Now he is saying that it tightens the clause. Surely it is either meaningless, and does not need to be there, or it has an effect. He has contradicted himself.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman made an interesting point, but not a bad one. The Minister may laugh, but some of us are taking this quite seriously. We want to have a decent debate and not spend our lives mocking each other.

The word ''clear'' is unnecessary. However, if it does anything, it puts a higher onus on the aggrieved party.

I will briefly deal next with amendment No. 104. It is a Government amendment that states that concerning a review they will omit from ''decision'' on line 16 in clause 10, page 10, to the end of line 17. The Government confirmed earlier that one of the powers that the tribunal had under the Bill as drafted was the power to order a rehearing by the tribunal. Presumably, the Government advisers thought that a good thing. If it was a good thing last week, and I assume that it was, why is it a bad thing this week? That is a straightforward question. The Government produce a Bill, they put a clause in it, they put some words in, and then a week later they knock them out.

I hope that we shall receive some answers to the points that I have raised. We shall come back to these issues more generally as the debate proceeds. At the moment, of course, we are dealing with the fairly narrow issue of the review by the tribunal, which, as I have already pointed out, is a possibly meaningless exercise. Other debates on the clause will deal with the important issue of the ability of the senior courts in this country, including the High Court, the Court of Appeal and the House of Lords, to be involved in the process, but those are my thoughts on the earlier part of the clause and the powers that it gives the tribunal.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

May I also make a few brief comments about clause 10? Later, when we discuss section 108, I want to look in more detail at some of the principles that I fear the clause breaks.

The Government's assumption is that the system is being abused and needs speeding up. I have some sympathy with their arguments about the need to streamline and to put procedures in place to avoid deliberate delay and make the system more efficient in some way. However, I am concerned that the Government's approach has been to take out levels of the system as a mechanism for improvement and speeding up, rather than focusing, as other hon. Members have, on the existing system and whether it can be improved before such fundamental changes as those suggested under clause 10 are implemented.

It would have been helpful if the Government had made some proposals to secure better home country information, better quality of initial decisions or improvements in training, translation and paperwork, and had sought to speed up of those processes, for example. Some of us may have had a little more time for the Government's suggestions for creating a single tier, if the single-tier option had been matched with a set of proposals for improving the quality of the system—but I would still have wanted to maintain, in any single-tier and speeding-up process and improved system, the ability to appeal to a higher court. It would have been possible to have a sensible debate with Opposition parties about streamlining, if those elements of speeding up systems and a form of judicial review could have been kept in the system.

When we discuss later amendments, I want to talk about the numbers game. We had a little debate earlier about the 3 per cent. and 22 per cent., but it is not a game. It is important to understand the level of individuals involved, because that highlights the mistakes that are being made in the system. The Minister said that we could not conclude that the people in that 22 per cent. were all put in the same camp for the reasons why those appeals have been found. It does not matter what the reason was—it could be one of a range of reasons—the point is that a decision was somehow wrong, whether that was due to a technical error or not. I will return to that point, because the Government propose to take away the ability to refer a case to a higher court, and we must understand what the consequences of such a decision would be for individuals such as the 22 per cent. mentioned earlier, who are currently able to use those second forms of appeal to have decisions on their cases reconsidered.

I hope also that the Minister will carefully reconsider other aspects, which are not connected with the Bill but will have an effect. I will not dwell on that, Mr. Taylor, because you would rule me out of order, but I am concerned by some of the discussions about changes to the legal aid system that have been held elsewhere. It is clear that the changes in the Bill will make the system more complex, so the need for individuals to receive good, high-quality advice early in the process will be essential. Changes proposed elsewhere may make it harder to access legal aid, and the quality of legal advice may be reduced because of changes regarding who may give such advice. The Government should bear that in mind. It would make

sense to put some of those changes on hold until these changes have been seen to work for a couple of years, so that we do not have the double whammy effect of not only making the system more complex but reducing people's ability to call on good advice.

I am concerned about the changes to the tribunal system proposed in the Government amendments. I am concerned about the construction of tribunals and the narrow opportunity for review of tribunal decisions. The Minister is getting a little grumpy about the issue of wording such as ''clear'' and ''error''. I say that in a friendly way—he is irritated by it. I do not think that he has made the case on that issue, and I remain unsure as to what the difference is between ''clear'' and ''manifest'' in relation to ''error of law''. It is important that we do not narrow access to appeal. If that were the Government's intention, we would have concerns.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

In his response to the hon. Member for Woking, the Minister said that the word ''clear'', which has interpolated itself, would be capable of construction by the courts to establish exactly what it meant. Of course, that will not happen; it will never be put before a court, because there is no possibility of appeal to a higher court.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

My hon. Friend makes an extremely important point: whatever one's views about the ability to have a case referred to a higher court, my limited knowledge of the legal system suggests that difficulties, confusions, and areas in which one is uncertain of interpretation have often depended on judicial review. That has been a principle of how we have clarified the legal system. Far from being an abuse of the system, judicial review has often been very helpful in the clarification of difficulties and confusion. I would have thought that there would be occasions on which the president and the tribunal would welcome some form of judicial review to clarify issues on which there may be confusion.

We are extremely unhappy with this clause and we will want to revisit the whole question of appeal to a higher court. The Minister has not made the case for the narrow issue that we have discussed today. We will want to probe carefully why, given that the Government are already reducing people's ability to question a decision, they appear to want to reduce it even more by inserting the word ''clear''.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

I rise to express my concerns about the clause. The Minister will be aware that I am a member of the Home Affairs Committee, which has produced a report on the Bill. I endorse the comments that have been made about the efficiency and effectiveness of the Home Office in dealing with appeals. I have no objection in principle to restricting the number of appeals that are made, but only if the appeal process is effective and efficient. Having attended a number of appeals, I am not convinced that they are either effective or efficient. We are trying to improve the Government's effectiveness and efficiency by reducing the number of appeals, which demonstrates how inefficient the system has been.

10.15 am

I endorse the comments that have been made about statistics. I am an engineer by profession and therefore am very interested in statistics and their basis. The Home Affairs Committee was unable to track successful and unsuccessful appeals; it is enormously difficult. Absolute scrutiny is denied to us today because the problem has not been tackled. The statistics quoted by the hon. Member for Woking were Home Office statistics, yet they are denied by Home Office Ministers. I find that rather confusing.

The Select Committee has asked the Home Office to address the issue. We want a process that is more efficient and effective but we must have the means to confirm that any alleged improvements in efficiency and effectiveness have been achieved. I am not sure whether the Home Office currently has the capability to monitor its own progress in relation to any improvement objectives that it may assign to itself.

I should like to read out a recommendation from the Home Affairs Committee that reinforces my arguments. It states:

''We recommend that, in considering the Government's proposed simplification of the asylum appeals system, the House should consider whether the Government has made sufficient commitment to investing the necessary resources, and making other improvements to the quality of initial decision-making on asylum cases.''

The Minister has argued in favour of the clause, but I wish that an equivalent length of time had been spent on improving the efficiency and effectiveness of the current appeals system. The report continues:

''The real flaws in the system appear to be at the stage of initial decision-making, not that of appeal.''

My personal experience confirms that.

''We recommend that the implementation of the new asylum appeals system should be contingent on a significant improvement in initial decision making having been demonstrated. In particular, the relevant sections of the Act should not be brought into force until the statistics show a clear reduction in the number of successful appeals at the first-tier, adjudication level.''

I stand by that recommendation, which makes an enormous amount of sense. I am disappointed that it is likely to be rejected. We will return after a year or so to see that there have been notional improvements but we will not have served those people well. They will have been denied justice by an ineffective and inefficient system that needs to be revised.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I want to make a few remarks about the amendments and about some of the points covered by the Minister in his opening speech. I shall be brief as there will be wider debates on the clause, which is, without question, the most serious in the Bill.

I will not repeat the statistical arguments developed earlier. I considered the matter on Second Reading and I am fairly convinced that the 3 per cent. figure quoted by the Government comes from comparing the number of successful appeals to the IAT with the number of initial applications for permission to go to the IAT. The figure certainly is not the proportion of successful appeals. The matter goes right back to the beginning of the process.

In 2002, there were just short of 3,000 decisions on applications for judicial review, but only 260 were granted; just under 10 per cent. Of those that actually had a judicial review, 30 per cent. were successful. Comparing the final number with the number at the beginning shows that a pretty small proportion succeed, but those are often the cases that really matter.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I cannot speak about the figures that my hon. Friend quoted as they are not in front of me, but I shall speak about the process. He says that of the cases that had a judicial review, 30 per cent. were successful, but he must bear in mind that the fact of a judicial review does not mean ultimately that the applicant is successful in making his case to stay in this country because he is an asylum seeker. The point is that a judicial review, considering a particular error of law, determined most frequently that the case should go back, or corrected a mistake that had been made in the previous tribunal. That mistake may not have been substantial enough to entitle the applicant to remain in this country. That is—

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

Order. Even ministerial interventions must be brief.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I appreciate the Minister's point; that the final number of people who succeed in the process will be only a small proportion of the numbers that started out at the beginning of it. But one could apply that sort of argument throughout the judicial system and say, for example, ''Let's look at the number of cases in criminal or civil law that are successful in the House of Lords and compare them with the number of cases at the beginning of the process.'' Of course, only a tiny proportion will be successful, but they are cases that actually matter. That is absolutely true in asylum and immigration cases. Those that do succeed at the IAT or at judicial review may have an impact not just on the one case but on many others, because they establish case law.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman knows that I have a huge respect for his approach to these matters. Does he agree that a huge number of the judicial reviews undertaken concern a review of the decision to stop benefit, rather than an appeal? Is not one issue the three-month time limit in respect of judicial review? The Government could reduce the time limit, thus reducing the problem that they purport to tell us exists.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

The time could be reduced; many of the cases that go to the administrative courts are benefit cases, but the figures quoted are not from the administrative courts. I got the figures from some parliamentary questions earlier this year on what happened in 2002.

Where the decisions are taken is critical. In amendment No. 104, we are asked to accept that there can be a review on a point of law, but it is a review by the tribunal itself. It does not go anywhere else, be it to an appellate court or a higher level. It is only a couple of years since Sir Andrew Leggatt reviewed the whole tribunal system. At the end of the review, he clearly envisaged there being two tiers of tribunal throughout

the system. On points of law, there would be a right of appeal from a first-tier to a second-tier tribunal, and from a second-tier tribunal to a court of appeal.

That was Sir Andrew Leggatt's general view of how tribunals should work. If that general principle is not to apply in one specific area, we will need a better argument than that there are incentives to delay asylum and immigration proceedings but not other proceedings. We are dealing with principles of law, not simply questions of speed. Not many people come to my advice surgeries to complain that they have to go to a tribunal more quickly than they wanted to; quite the opposite. People turn up time and again, saying, ''I put in an appeal nine months ago, but I've heard nothing. What's happening?'' They want me to chase the matter up to find out why their appeal has not been heard.

Amendment No. 104 raises the critical issue, to which we shall return, of who reviews the tribunal's decisions. Is it satisfactory for decisions on points of law to be reviewed not by some other body but by the tribunal itself, even if the same people are not on it?

I am not sure whether the hon. Member for Woking was right to be so pleased about the Government's attitude to amendment No. 42. The amendment would widen the grounds on which decisions can be made, because the provision that it would delete essentially restricts the tribunal's decisions to points of law. However, the measure relates to re-hearings, which the Government are removing, so the amendment is spurious in the first place.

Amendment No. 101 refers to clear errors of law, but there is nothing that deals with clear errors of fact. The IAT deals mostly with questions of law, but it has dealt with questions of fact and has been prepared to change adjudicators' decisions when there have been clear errors of fact. How will anyone challenge the tribunal's decision if there is a blatant error of fact rather than of law? There is no mechanism left. That is why the clause is such a serious and central part of the Bill.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

I rise briefly to express concerns about the Government amendments before us and, in particular, Government amendment No. 101, to which I shall turn in a moment. However, like many others who have spoken this morning, I have broader concerns about the clause.

The Minister referred to ousting the supervisory role of the courts and, in that regard at least, he sums matters up extremely well; that is, indeed, what the clause will do. In the light of the basic tenets of Scots law that and, I imagine, the law in England and Wales—in keeping with the tenets of a basic, civilised society—I find that prospect abhorrent. However, those concerns can be explored more fully when we come to debate subsection (7). I noted with interest the statistics promulgated by the Minister, but I suggest that they should be read with a Government health warning. It sometimes seems that the Government are making it up as they go along.

10.30 am

The key issue is whether it is acceptable to remove the basic constitutional right of proper and effective appeal. If there are administrative problems in the asylum system—I believe that to be the case, and other hon. Members have referred to them—the solution must be to solve them. There are no short cuts in life. It is unacceptable that, instead of trying to solve the administrative problems, the Government should seek fundamentally to undermine the legal systems of the United Kingdom.

As for Government amendment No. 101, I have listened carefully to the debate on errors of law and what are deemed to be ''clear'' errors of law, as opposed to any other kind. However, the debate is spurious because an error of law is simply that. It is not possible to qualify errors of law. An error of law is an error of law. Rather, the key issue is whether the error is sufficiently serious as to vitiate the underlying decision, which can happen regardless of whether the error is clear, unclear or of any other kind. Such errors are normally subject to appellate review.

Finally, the hon. Member for Walthamstow (Mr. Gerrard) raised an extremely important point, one that has not been raised by other hon. Members. Not only are we looking at further restrictions on the right of review by referring to a ''clear error of law'', but there is no possibility of review as a result of there being errors of fact. I find that shocking.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

I asked my hon. Friend the Minister earlier if he would give serious thought to the word ''clear'' in Government amendment No. 101, but he declined to do so. That encourages me to express my concern to the Committee rather than to my hon. Friend in the Tea Room, which is what I hoped might happen.

My concern is not at all spurious. Let us suppose that someone's request to be treated as an asylum seeker receives a negative decision, and he requests that the decision be reviewed. We may further suppose that the general view in the legal profession and more widely is that the person has a strong case in law that an error in law has been made. However, a strong case is not necessarily a clear one. Indeed, strong cases, by their very nature, are debateable; sometimes they turn out not to be as strong in the hearing as they were in thought. Informed lawyers may say that if a strong case were to be heard in court, there would be a 90 per cent. chance of there being found to be an error of law. Again, however, it would be a strong case, not a clear one.

As it stands, Government amendment No. 101 requires a ''clear'' error in law. An error that was debateable or that had only a likelihood of being established would not be ''clear'', and a request for review would be declined. That cannot be right; it suggests that a lot hangs on the word. There must be scope for somebody to consider the tribunal's decision.

I strongly support the Government's desire to fast-track the process and I am aware of all of the problems that flow from a slow-tracked process. However, fast-tracking should not be achieved by failing to consider

the matters that I have mentioned. Who should consider them? We have established courts to do so and to weigh up whether an error of law has been committed, but the word ''clear'' removes the matter from the jurisdiction of the courts. We should not deny the courts the ability to make the sort of determination that they are best equipped to make.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I shall try to deal with the points raised individually, although some of them pertain to the more substantial discussion that we would expect to have on section 108, which deals with the ouster clause. I am grateful that the hon. Member for Winchester indicated that during his remarks.

The Government accept the need for high quality at all stages of the asylum process, not merely that of the initial decisions that my hon. Friends the Members for Crosby (Mrs. Curtis-Thomas) and for Walthamstow were keen to discuss. They were right to do so because all Members of Parliament—certainly those whose constituencies, like mine, frequently experience large numbers of newly arrived people claiming asylum—will be aware of two important facts. The first is that the consequences of initial decisions are seen every week in our surgeries, usually in the form of people claiming that the initial decision was wrong or wanting their MP to speed up the process of getting the initial decision.

The second matter of which we must be acutely aware, and which must not be lost in the discussion, is that we are engaged in a balancing act. Many hon. Members will have had several meetings with individual constituents as they have progressed through the system and have asked them to help, perhaps by writing to the Home Office. They will know of the many layers involved and will understand that we have to achieve a balance between ensuring fairness and justice and being strong in preventing abuse of process.

My hon. Friend the Member for Walthamstow, who is indeed a good friend, said that I had to make a stronger case than one based just on the incentive to delay if we wanted to make a significant change to the system, and he was right. Two underpinning legal principles sit squarely with the incentive to delay, and although I do not want to take up the entire morning sitting, I want to say something about them. They are the principle of finality, which is essential to our constitutional arrangements, and the principle of abuse of process. All Governments have revisited systems, amended laws and changed arrangements to deal with abuse of process. Those two principles cut to heart of our discussion.

The hon. Member for Woking said that the changes are significant and I do not underestimate their significance for one minute. However, I believe that we have got the balance right, and I want to explain why. There is some confusion among hon. Members about what we envisage, which was demonstrated by what was said by the hon. Member for Somerton and Frome. [Interruption.] The hon. Gentleman will forgive me if I mispronounced his constituency; I have

been to Frome only once, when I was on ''Any Questions?'' two years ago. It is not a part of the world that I know well.

In establishing case law in the new arrangements, it is important to remember that the IAT currently produces starred decisions on points of law and leading decisions on country situations in particular. Both are binding on the adjudicators. The starred decisions, which are critical in setting the tone and direction of policy and law, will continue in the new tribunal. That will enable the president to require the tribunal to treat specified decisions as authoritative ones. We anticipate that the binding decisions will have been determined by a panel of the senior judiciary in the new tribunal. That will provide guidance for immigration judges, reducing the need for panel hearings and referrals to the Court of Appeal or Court of Session.

The Bill provides the president of the tribunal with the power to refer a point of law that arises during the course of proceedings to the Court of Appeal or Court of Session for its opinion. That is covered in new section 108B, which we might discuss later. That will allow the tribunal to access the judicial expertise that exists in the appellate courts without undermining the overarching policy objectives of speed and finality that I mentioned. Even though that pertains to our later discussions, it is important to have on the record the fact that starred decisions set by the senior judge in the tribunal are passed down and that the tribunal president may also refer up for further instruction.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

We have that point on the record, so may we have another? The Minister said that the president may refer a case to a higher court. Will he also confirm that the president can completely ignore what the higher court says after doing that?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The hon. Gentleman will know that that would not remotely be within the spirit of our common law tradition. It would be peculiar; it would be like the hon. Gentleman asking the leader of his party for advice and then throwing it back in his face.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

It happens all the time.[Laughter.]

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

We on this side of the Committee are not surprised by that.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 10:45 am, 20th January 2004

If the Minister is right, this is a very serious point. The opinion of the Court of Appeal inevitably would be acted on even though, strictly speaking, it does not have to be. Why does he not amend the Bill to provide that the opinion of the court is binding?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

As I said, we have a very strong common law tradition, which means that decisions taken by our upper courts are taken very seriously. The president would be entirely expected to follow the court's recommendation. However, the hon. Gentleman will know that we will be able to debate that point further—I will be happy to do so—when we discuss amendment No. 127.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

On the point made by the hon. Member for Woking, the Minister, with respect, did not answer the question. We are dealing with the creation of many things under the statute, including the creation of statutory offences, so it would be entirely proper for the Bill to provide that the body seeking the opinion—in other words, the tribunal—is bound by the reference for opinion, if that is the Government's intention. If that is what they are saying will be the case, why do they not include it in the Bill?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I have twice talked about the common law tradition, and will not do so a third time. We will return to the issue when we discuss amendment No. 127.

The hon. Member for Somerton and Frome made another, extremely serious, suggestion, which I must deal with and put to one side. He suggested that our tribunals are a second-class jurisdiction; that they are not really judges and so do not apply. Tribunals have always been established to deal with specific areas of law. In other words, the jurisdiction and the procedures of tribunals have always been context-specific. They have built up expertise in immigration and asylum over several years.

The challenge that we currently face in the determination of immigration and asylum claims is the particular problem of deliberate exploitation in a multi-layered appellate system. It is important to pay tribute to the work that tribunals do and to understand the context in which they came about. I refer the hon. Member for Somerton and Frome to Wade and Forsyth and to other constitutional law books if he wants to understand how we got our tribunals in the first place. We got them following the second world war as a result of the inability of our high courts to deal with the overwhelming amount of new administrative law from the Attlee Government. We created such tribunals on social security and employment policy and gave them the power to make decisions.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

Of course the tribunals do a good job. However, when I first had a constituency case involving a tribunal, it became obvious that the president did not even understand the basic rules of natural justice, but that is by the by. Does the Minister think that having an area of expertise is a ground for not allowing review by a higher court?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I did not say that. I had to dispute the suggestion that tribunals are second-class institutions. They are not; there are specialisms in that level. The Government position is that reviewability within the tribunal, either by a panel or by a senior judge—let us face it, they more or less make up the IAT—and the ability both to star decisions and to seek advice and recommendations from the Court of Appeal simplifies the system and ensures justice.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I am grateful to the Minister for patronising me in the way that he has. He claims that I said that the tribunals are second-class institutions; I did not. I simply observed that the adjudicators are not judges. One of the attributes of the present system that he is crying in aid is the ability to make appeals to the

judiciary—the higher courts—on decisions. The Minister is removing that, which seems an apposite point to make in this debate.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I was seeking to deal with the suggestion, which was accompanied by a shrug of the shoulders, that tribunals are not really like judges. We propose, through amendments, that all the judicial officers in the new arrangements will be judges, because we take their work in the tribunal seriously.

The hon. Member for Woking called what we are proposing a constitutional outrage.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

It is not, although I accept that he was quoting someone else who suggested that it was. We are operating well within the boundaries of Government action. It is important to consider both the principles of law—finality and abuse of process—with which we seek to deal, and the fact that we are acting according to the rule of law, as we are required. A big factor in that is the sovereignty of Parliament. It is for this place, in deliberations such as these, to decide whether such proposals are within our constitutional arrangements. We should not forget that.

Let us not forget that, in the 1940s and 1950s, when Labour Members proposed new employment tribunals and relevant social security arrangements, it was Conservatives who called it a constitutional outrage. They said that it would not fit with the new arrangements and that all such matters should go through the High Court.

From time to time, we encounter issues of this kind, but what we are doing is in accordance with the law and within our constitutional arrangements. Sovereignty of Parliament enables us to carry out what we want to do. It is well understood, whether in Dicey or in Wade, that we can act in that way to ensure that we deal with the problem of abuse of process.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

The Minister has referred to the second world war, the 1940s, the 1950s and now Dicey and Wade in what seems to be an expedition into jurisprudence rather than law. I am interested in when such action has been taken before. When previously has an appeal to any higher court been written out by statute?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

It has not been done before. It was important for me to put what we are doing in a historical context; if, in the past, Labour Members of Parliament had been asked, ''When, before, have we had an employment tribunal or an immigration tribunal?'' the answer would have been, ''We have not.'' That was my point. We make progress by dealing with the circumstances of the time.

The important circumstance is that there is an incentive to delay in this context. We must bring finality to the arrangements. It cannot be right that a disingenuous claimant should bring a case for judicial review, loop back through the system and then fail, time after time. It is right and proper that we should deal with that.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

Perhaps I have not read my briefing notes; I understood that there were examples of the Government acting in this way, but that they all related to national security. It would be interesting if the Minister clarified the matter.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Forgive me. The hon. Gentleman is right that in dealing with issues of national security, terrorism and other matters, Governments have, in the common law tradition, considered the issue.

In May 2003, Mr. Justice Munby recommended, in giving a determination, changes to stop abuse of the judicial review process. He had just heard the fourth application for permission for judicial review in the case of a Mr Dahmani, a failed asylum seeker from Algeria. The judge recommended rule changes and said:

''I am entirely satisfied that the application is an abuse of the process and that Mr. Dahmani is a failed asylum seeker who is merely playing the system''.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Did the judge go on to say that judicial review should be abolished altogether, or did he, as I think the Minister said, talk about changes to the rules? In the latter case, costs, time limits and legal aid could all be brought into play to satisfy the judge. Would he have been satisfied only with complete abolition?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Mr. Justice Munby, as I outlined, suggested that there was a need for changes to the system—

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Changes to the rules. It is right that the Government should consider where to make changes. As I said, in reality the current system is not simply one of two tiers. There are many more tiers than that; more than in other areas of law. I heard what hon. Members said about statistics but, as I said to my hon. Friend the Member for Walthamstow, this is about remittals and matter that are substantively overturned in the end. We say that the figure for that is between 3 and 4 per cent. There can be five to 13 layers for a small percentage of cases that, constitutionally and in accordance with justice, can be determined by the review mechanism or, indeed, points of law recommended by the Court of Appeal.

We believe that this measure is appropriate. It satisfies us that we are acting according to the law and, most importantly, that we are meeting the needs of genuine asylum seekers who do not want to be caught up in a process that takes years and years. It ensures that we have social cohesion in our communities and that our tribunals work most effectively. That is why we consulted the judiciary and the tribunals closely in coming up with the arrangements that we have proposed. That can only be right and proper.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk 11:00 am, 20th January 2004

A moment ago, the Minister said that Wade and Dicey supported his case. I have here the Library's copy of the Wade and Forsyth book. The chapter on ouster clauses and protective and preclusive clauses specifically says:

''The Anisminic case''— which was the leading case—

''and its sequels were the culmination of the judicial insistence, so often emphasised in this work, that administrative agencies and tribunals must at all costs be prevented from being sole judges of the validity of their own acts.''

Is not that the point, and does not it completely destroy the Minister's point?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I do not think so. Elsewhere, that book contains strong references to abuse of process and the nature of our constitutional arrangements and the sovereignty of Parliament. There are clear references to the other factors relating to the nature of our tribunals. We believe that the review mechanism in that court, and the ability of the president—a High Court judge—to refer upwards for recommendation, satisfy the need where there is an incentive to delay. That is most relevant to this discussion.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

When the Minister said ''that court'', did he mean ''that tribunal''?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I will not give way any more. We could act this out as if we were in a court of law, but we are not in a court of law; we are in a Committee of the House of Commons. The hon. Member for Woking said that this measure was a constitutional outrage and talked about the rule of law, as well as quoting commentators who had also done so. I have sought to reassure hon. Members and people outside that that is not the case, and I believe that I have done so. It was for that reason that I spoke to the Government amendments today.

Amendment agreed to.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 40, in

clause 10, page 10, line 12, leave out 'only to written' and insert 'to written or oral'.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

With this it will be convenient to discuss Government amendment No. 102.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

We now move sideways slightly, in that we are still dealing with the broad issue of the review by the tribunal, although with another aspect of it. Under the Bill, the review shall be conducted by reference only to written submissions. Notwithstanding the Government amendment, on which I shall shortly comment, that is how the Bill was drafted, after a pathetically short period of consultation. That is how the Bill was presented to the House of Commons on Second Reading, and then came into Committee. I repeat that what was proposed was a review conducted by reference only to written submissions. I believe that that is extremely restrictive, and unnecessarily so.

A much fairer and fuller review would take place if the applicant were able to make all representations and arguments either through himself or through counsel instructed on his behalf. I cannot see why the Government should not accept my amendment in its totality. Why are the Government limiting the review to written submissions only? Are they worried about delay? Surely not. They know as well as us that delays in the system occur at a much earlier stage and have

nothing to do with the courts. I have referred already to the extraordinary delays before an initial decision, between an initial decision and the adjudicator, and between the adjudicator and the tribunal.

I was struck, earlier this morning, by the comment—made, I think, by the hon. Member for Walthamstow, who will correct me if I am wrong—that when asylum seekers go to surgeries, they do not say, ''For goodness' sake, can you spin my case out?'' More often than not, they say, ''For goodness' sake, can you find out what's going on, and why can't we move a bit more quickly? I need a resolution.'' It cannot be delay that is troubling the Government on the issue of whether the review is conducted orally or by reference to written representations.

What, then, is the Government's objection? What could they do if they were worried about the tightness, or otherwise, of this procedure? If my amendment were accepted, the Government might say that it would cause some delay at a late stage. It will mean that there will have to be time set aside for oral argument, which would cause extra delay in the proceedings. If the Government are going to say that, let them adopt my amendment and put down, for example, extremely strict time limits.

It is all very well the Government criticising judicial review; there is some justification in their criticism. However, one of the main problems is that the tribunal has three months in which to review its decision. Why should not the Government say specifically, for example, that a review must be sought within seven days of a decision, and must be heard, if it is oral, within a further 14 days? The tribunal could then get on and hear the review. I imagine that it would be heard by a different set of immigration judges, but it is quite obvious to any sensible person that the group carrying out the review would get a much better, fuller and more complete picture if the matter were argued orally before them.

How many times have judges in the past said, ''This is an interesting point. I want to hear an oral argument about it. Let the parties come before me.''? They still say it. They might, for example, want to put questions to the advocate, hear argument, or hear precedent cited. It is wrong in principle to tie the hands of those conducting the review by limiting it only to written representations. It is wrong not only in principle but in the interests of justice. By accepting my amendment, the Government will not be giving away not much at all in terms of their own criteria, but would in fact be doing a service to the tribunal and those appearing before it.

My words hold good today but, within the past few days, Government amendment No. 102 has been tabled. Why has it taken the Government so long to introduce the amendment? It beggars belief that such an amendment can be tabled so late in proceedings. Do Ministers make those decisions, or are they advised by officials? Why did officials allow proceedings to progress so far before another amendment is suddenly tabled at the last moment? That is absolutely inefficient

and allows no time for consideration. I suppose that we should be used to it, but it means that the Committee is unable to carry out its business.

Government amendment No. 102 states that,

''if in the course of a review the Tribunal forms the opinion that the exceptional nature of the case makes it impossible properly to determine the review without an oral hearing'', such a hearing can be held. The Government's position has moved a fraction, but the amendment presumes that the Government have conceded that the tribunal must hold an oral hearing in some cases. Why did they concede that point only a few days ago? If they thought, until a fortnight ago, that an oral hearing was out of the question, what suddenly persuaded them to change their mind?

If the Government concede that an oral hearing is appropriate in some cases, why have they limited such hearings to cases of an ''exceptional nature''? Why do they not permit the tribunal to conduct an oral hearing if it feels it appropriate to do so, irrespective of

''the exceptional nature of the case''?

On how many occasions does the Minister think that the tribunal will allow an oral hearing? If cases have to be ''exceptional'', I would understand that to mean that oral hearings would rarely occur. A parallel exists in criminal law. In criminal courts, someone cannot be disqualified under the totting-up procedure if the exceptional nature of the case makes it inappropriate to do so. Anecdotally, I estimate that only one in 50 or 100 cases are of an exceptional nature. Does the Minister envisage that oral hearings will be held in one case in 100, or more frequently? The word ''exceptional'' suggests that parties will rarely have the opportunity to make oral arguments before the tribunal.

My amendment would permit the tribunal to hear oral arguments unfettered. It would not allow the tribunal to hear oral arguments only in exceptional cases, and the arguments in favour of my amendment are strong.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Government amendment No. 102 inserts new subsection (2A) into new section 105A of the Nationality, Immigration and Asylum Act 2002. New subsection (2A) allows the tribunal to hold an oral hearing as part of the review,

''if in the course of a review the Tribunal forms the opinion that the exceptional nature of the casemakes it impossible properly to determine the review without an oral hearing.''

Amendment No. 102 should be read in conjunction with the group of amendments that amended new section 105A, and the consequent amendments that we discussed earlier. Together, they remove the power of the tribunal, on review, to order a rehearing of the appeal by the tribunal. New subsection (2A) would provide fairer and faster resolution of the case.

The Government are attempting to avoid a situation in which cases are remitted back down, and are therefore looped back. My hon. Friend the Member for Walthamstow and I discussed the nature of that process earlier; it is not merely a two-tier process, but multitiered. Therefore, we believe that the oral

hearing, if necessary, should be heard at review stage by the panel. The introduction of the new subsection would provide a fair, balanced and just system in exceptional circumstance; those cases that are, by their nature, hard to foresee and out of the norm. To answer the hon. Member for Woking, they are rare. If the provision were not amended, there would be a fresh appeal hearing, heard by a third judge or panel of judges. That is not a sensible use of the judiciary.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester 11:15 am, 20th January 2004

A question occurs to me. When a tribunal has taken the decision to review a case, it will review it on written evidence. If, having undertaken that review, it is concerned and wants more information, it may request an oral hearing. Will it be allowed to meet again and have an oral hearing? As I read it, the Bill says that the tribunal may not sit again; it cannot review its own decision.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The tribunal would seek to have the oral hearing at that time at which it determined that it needed one.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I thought that the Minister might say that, and that is why I am concerned. I should have thought that the point at which the tribunal might recognise that the case was proving difficult, and that it needed to take up the option of an oral hearing, would be at that hearing. However, that would be the very point at which that option suddenly would be precluded.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

It is certainly not my intention to preclude an oral hearing at that time. If the hon. Gentleman sees an error that would lead to something other than my intention, I shall be happy to look at it.

The hon. Member for Woking asks why we do not restrict the judicial review by imposing time limits. Time limits are led by the civil procedure rules, which are set by the judges. We would not normally legislate to restrict them by imposing time limits. Indeed, that may pertain to the point raised by the hon. Member for Winchester, although I shall take that away and consider it. The intention is that, in exceptional cases, the panel may hold an oral hearing.

Amendment No. 40 is not acceptable, because it would allow submissions to be made in every tribunal case. That would take us back to the situation that we seek to remedy. It would not strike the right balance and would cause unnecessary delays. We commend Government amendment No. 102, but are unable to accept amendment No. 40.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I find the Minister's reply disappointing, but that is not a surprise to any of us. We are left with the prospect of an oral review being held only in exceptional cases, which is a disappointment; it would be merited in many more cases. We are also left with the fact that, in so many areas of life, a judicial authority seized of a particular matter would much prefer to hear all the arguments, and would have many questions arising out of the papers before it. As far as I can see—the Minister will

correct me if I am wrong—such matters will not be dealt with orally under the clause as it stands because they may not fit into the category of ''exceptional''.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

Would the hon. Gentleman be happy, as I would be, if the formulation of the Government amendment were not that the exceptional nature of the case made it impossible properly to determine and review without an oral hearing, but simply that an oral hearing would be in the interests of justice?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Not for the first time, the hon. Gentleman comes forward with a sensible suggestion. That would give broader discretion to the tribunal. The phrase is well known in statute and is capable of interpretation and understanding by those who administer the law. The hon. Gentleman's observation is most helpful. I imagine that he would like me to say that we hope that the Government will take the phrase away and possibly come back on Report with something that better fits the approach that we would like to see being taken.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 102, in

clause 10, page 10, line 12, at end insert—

'(2A) But if in the course of a review the Tribunal forms the opinion that the exceptional nature of the case makes it impossible properly to determine the review without an oral hearing, the Tribunal may hold an oral hearing.'.

No. 103, in

clause 10, page 10, line 15, at end insert 'or'.

No. 104, in

clause 10, page 10, line 16, leave out from 'decision,' to end of line 17.

No. 105, in

clause 10, page 10, leave out lines 20 and 21 and insert

'would have been different but for a clear error of law by the Tribunal.'.

No. 42, in

clause 10, page 10, leave out lines 22 to 29.

No. 107, in

clause 10, page 10, line 31, leave out from 'once,' to end of line 32.—[Mr. Lammy.]

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I beg to move amendment No. 127, in

clause 10, page 10, line 33, leave out subsection (7).

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

With this it will be convenient to discuss the following:

Amendment No. 43, in

clause 10, page 10, line 35, after 'court', insert

'save the Court of Appeal'.

Amendment No. 44, in

clause 10, page 10, line 37, after 'court', insert

'save the Court of Appeal'.

Amendment No. 45, in

clause 10, page 11, line 10, leave out from 'exercised' to end of line 15.

Amendment No. 142, in

clause 10, page 11, line 17, at beginning insert 'shall not'.

Amendment No. 143, in

clause 10, page 11, line 23, leave out from 'justice,' to end of line 31 and insert—

'(v) bad faith on the part of a member of the Tribunal, or

(vi) any other matter, and

(b) shall not prevent a court from reviewing a decision to issue a certificate under section 94 or 96 of this Act or under Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal to safe country).'.

Government amendments Nos. 108 and 109.

Amendment No. 121, in

clause 10, page 11, line 38, after 'section', insert

'''court'' includes the European Court of Justice and the European Court of Human Rights; and'.

Amendment No. 46, in

clause 10, page 11, line 40, leave out 'may' and insert 'shall'.

Amendment No. 65, in

clause 10, page 12, line 9, after 'opinion', insert '(which shall be binding)'.

Amendment No. 66, in

clause 10, page 12, line 28, at beginning insert

'Save with the leave of the Court of Appeal,'.

Amendment No. 120, in

clause 10, page 12, line 29, at end insert—

'(6A) No appeal shall lie to the European Court of Human Rights or the European Court of Justice from any decision of an appellate court in relation to the giving of an opinion under this section.'.

Government amendment No. 112.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I realise that I am not going to make much progress before we rise, but we have reached the heart of a subject that we have been skirting around all morning; the critical issue of breaking the principle of being able to refer cases to a higher court. Before we break for lunch and other meetings, I shall leave the Committee with this thought from the Law Society, which sums up our concerns. It states that

''The general principle of English law is that the High Court exercises a supervisory jurisdiction through judicial review over administrative decisions and the work of tribunals in order to ensure there is a remedy where those bodies make errors of law or reach decisions in way that is grossly unfair.''

It is important to bear that in mind as we consider subsection (7), because it hits at the heart of a long-established principle. The Minister said earlier that this is the first time that the principle has been broken.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.