I remind the Committee that with this we are considering 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
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.
I welcome you to the afternoon session, Mrs. Roe. When we broke for lunch, I was completing a quotation from the Law Society. I quoted it to establish in the Committee's mind the concern among the legal profession about what they and I perceive to be a general break with principles. The principle about which the Law Society expressed concern was that in every other area of tribunal law, for example, the system allows for judicial review of the tribunal's work. The Minister helpfully said that he believed that this is the first case in which that principle has been broken. We had an exchange about how I believed that there had been a couple of prior instances of the principle of going to a higher court being taken away, but those had both been in cases that could be described as involving national security. The two cases that I had in mind were—
The hon. Gentleman will forgive me, but this morning the hon. Member for South Norfolk (Mr. Bacon) also mentioned the Anisminic case. He was right to raise that, because it was an instance of the courts seeking to oust judicial review for foreign compensation claims. They were, in effect, compensation claims following the state's taking land during times of war.
I am grateful to the Minister for adding a third category. The two that I wanted to cite were the Special Immigration Appeals Commission and, in particular, the Proscribed Organisations Appeal Commission. I can see a case for taking away the ability to go to a second appeal where the issues are so sensitive. His responsibility this afternoon is to convince the Committee that the argument for taking away the right of appeal in these cases is similar to issues of national security. I cannot see that there is any case for the Government to make to put this on the same level. If it is not for cases of national security, it must clearly be for pragmatic reasons.
The Government want to change a fundamental principle for the sake of administrative convenience. They want to speed up the process, for practical reasons, and remove a current principle of law.
I do not take any credit for this quotation, as we have all had it in our briefings, but it is worth drawing to the Committee's attention. The Prime Minster, when he was shadow Home Secretary some years ago, said:
''It is a novel, bizarre and misguided principle of the legal system that if the exercise of legal rights is causing administrative inconvenience, the solution is to remove that right.''—[Official Report, 2 November 1992; Vol. 213, c. 43.]
I could not agree more. It was absolutely right then to raise concerns about the principle of deciding that the way to solve a problem was to do away with a legal right. We believe that the problem could have been solved in other ways and not, as the Prime Minister said seven or eight years ago, by taking away legal rights.
I was very interested in the hon. Gentleman's quotation from the Prime Minister, which I also saw. Did he also see that the Prime Minister appears to have changed his mind about the rule of law, inasmuch as he spoke to his party conference last year about the judges ''interfering'' with his so-called system?
The hon. Gentleman could draw me into areas in which I would be called out of order, but I make the observation that there appears to be a trend, especially with the Home Secretary, who always seems to want to take the law into his own hands, always to second-guess the judicial process.
What is being suggested under clause 10 is another example of the bypassing of some of the principles that we have long had in this country about having a form of judicial review. It seems clear that the Government's overriding principle, above all the principles of natural justice, is to speed up the system, and to put in place ways in which that can be done. We in the Opposition believe that that could be achieved in other ways.
I ask the hon. Gentleman to consider the case of a family of asylum seekers, who, because of the availability of judicial review, spent more than a year in detention in Scotland, when they should have been removed from the country more than a year before. Will not the streamlined system in the Bill mean less anxiety and despair for certain families, whose best interests would be served by leaving the country sooner rather than later?
I find it a funny argument to say that it will be in the best interests of some people, particularly those who have had successful appeals, to take away the possibility of a form of appeal. However, I agree that it is in everyone's best interests to have a speedy decision. That is why we would like to hear more suggestions from the Government about speeding up the system within the existing structure, rather than taking away the judicial process. They should consider how to improve the quality of home country information, training at immigration offices, translation and the system itself.
The Minister and I had a small exchange earlier about the ''problem''—it is a problem in the Government's mind—of the number of individuals who are claiming asylum. Will the Government consider that that number may reduce in the next few years, possibly because of people acting on their own initiative or because of changing patterns related to the enlargement of Europe, and that their so-called perceived problem may disappear over the next two or three years? Are these measures necessary to meet their perceived concern about those numbers?
My point is that the proposals are not yet in place, but the Government claim that the number of applicants has reduced. If that trend continues, the measures may not be needed. It would be interesting to know whether the Government think that it will continue. We may be putting in place a package of measures that is a reaction to a situation of one or two years ago and may not be needed if the trend continues.
I am speaking specifically to the clause, but I could put up an equally strong argument that the measures in clause 7 about the removal of benefits are also an overreaction to a situation that appears to be changing. I speak specifically to this clause because I would be called out of order if I did not, but there are other issues to be addressed about the Government's overreaction to an asylum issue, which is largely prompted by tabloid headlines. If they look at their own figures, and the trend that is taking place, they may consider that some of the measures are unnecessary.
I come to the importance of the appeal process. I have two reasons for doing so. The first, which I have already outlined, is the legal principle. The second is a practical reason, and I return to the figures that we spoke of this morning. One of the benchmarks by which I would judge an appeal system is how many individuals use it, and how many benefit from it. I want to be helpful, so I shall give what I believe to be the numbers who have taken advantage of the process. The figures are based on information from the Library and from the Home Affairs Committee's report.
I understand that 34 per cent. of initial asylum applications in 2002 were granted, and that 66 per cent. were refused. Of those refused, 77 per cent. decided to appeal; and of those, 22 per cent. were successful. I am pretty clear in my mind what that means: that a considerable number of individuals whose cases were taken to the next stage of appeal were successful at that point.
The question for the Minister is what will happen to that 22 per cent.; what will happen to those who have been able to make their case? Where in the system will the issue be resolved? He may say that not all of the successful 22 per cent. succeeded in getting a decision reviewed on the merits of the case, and that there may have been technical reasons for overruling some decisions. The point remains, however, that there must be somewhere in the system to deal with that 22 per cent. of cases. If he were to say that he is convinced that measures to be introduced will improve the system so much that the initial decisions will be right, and that he does not perceive many mistakes, errors or changes of decisions being made, I would be prepared to listen.
However, we are not being told that by the Government, who as things stand are removing the ability to consider that successful 22 per cent. of cases but are not putting in place matching proposals to improve the initial decision-making process.
The figure is worse than 22 per cent. for some parts of the world. The success rate for appeals in relation to parts of Somalia and Zimbabwe run at 35 per cent. For applicants from some countries, more than one third of cases are successful on appeal. I am troubled by what will happen there when the ability to take cases to a higher level is removed.
I want to make another point about the appeal process. I do not want anyone to labour under the impression that Opposition Members think that the system is in total chaos. For instance, the initial decision-making process could benefit from more training and from officers being better informed. However, the immigration and asylum system is extremely complex. It is a difficult area of law, and some initial decisions require difficult judgments to be taken by appeal officers—perhaps based on anecdotal evidence or an individual's emotional appeal, or on limited and fragile information.
Even the most able individual will occasionally find difficulties in coming to the right decision or in interpreting the law. Irrespective of our view of the quality of the initial decision, another compelling argument for some form of appeal is that we are dealing with extremely complex issues of law and interpretation. My hon. Friend the Member for Somerton and Frome (Mr. Heath) does not suggest that some tribunal officers are second-rate individuals; he was saying that at present those individuals at least know that there is another form of appeal; if they get it wrong, they know that there is at least one more level of appeal. Our concern is that taking away the next level will put increased pressure on tribunal members.
The Government have not made clear what the quality of those individuals is to be, nor their level of legal understanding. At least under the current arrangements the case can be referred to another tier if they get it wrong.
How will the hon. Gentleman avoid the bouncing ball effect, where the case keeps going from adjudicator to tribunal to court and so on. Would he not sympathise with the view that, if the ball is going to bounce, there should be a very good reason for its bouncing, and we should try to get through most cases much more quickly? Is that not to everybody's benefit?
I do not necessarily disagree. I have to be careful about how I choose my words here, but I would rather that a little bit of ball bouncing was allowed to take place, combined with a big streamlining and improvement of the system, rather than doing away with any ball bouncing at all, which is the current proposal. If my argument to keep this form of additional appeal is accepted, I accept that there will be some people who try to abuse it. We have to make a judgment about what we think is the greater evil. I
come down firmly on the side that I would rather have the ability for an appeal—which will mostly be used genuinely, with the danger that occasionally it is being abused—rather than take it away from everybody genuine because of those who may abuse it. That is a judgment call.
I wanted to make an additional point about some form of judicial review. My first argument was in relation to the principle. My second argument was in relation to the need for it, because we clearly have so many cases where the decision is wrong in the first place. My third argument is that judicial review plays an enormous role in helping to establish the principles of good law in the first place, particularly when it comes to issues concerning immigration, human rights law and refugee law. These are laws that are constantly being changed, not just in this country but internationally. The conventions on refugees and human rights have been described by some as a ''living instrument''. They are constantly evolving and moving, so it is very difficult continually to interpret decisions taken in this country against changing conventions without occasionally having the ability to have some form of judicial review to test those changes, and to ensure that we are up to speed. That is the classic area where judicial review has a really important role.
There are other areas where it is understood that the ability to go to a higher court plays and could play a key role. If there were errors of approach or interpretation by the tribunal—it seems perfectly acceptable that there could be a genuine error that the president does not spot or is not inclined to act on—we need that ability to refer the case to another level. Inconsistent decisions by a tribunal would be another area to test at a higher level. I cannot see a president, with the best will in the world, necessarily wanting to focus on inconsistent decisions within his own department. A way of independently checking some of those inconsistencies is needed.
If we assume that the Liberal Democrat arguments will not prevail, we must examine what the Government are proposing in detail. I want to refer in particular to new section 108B, and the process by which the president may refer to a court on a point of law. It is sensible at least to have a good system in place for the president to be able to refer some of these cases.
The Government have framed new section 108B in a way that gives incredible power to the president. As the Minister acknowledged earlier, he can refer cases as he chooses. Nobody else can decide that. When he refers a case to the court, it can only give an opinion, it cannot make a decision. That in effect means that the president is not obliged to follow the opinion of the court. The Minister said that that would not happen in reality. This is my first Standing Committee, so I am somewhat inexperienced, but I thought that the role of the Opposition here was not simply to take the word of Ministers but to ensure that it was reflected in the legislation. Future Ministers may take a completely different approach.
Does the hon. Gentleman agree that the rule of law relies on legal guarantees enforceable in independent courts, not on political assurances?
I agree. It seems a matter of common sense that if the president chooses to refer a case to a higher court he should be bound by any judgment or ruling that he receives from that higher court. Under the Bill as it stands, he could completely ignore it. I think that the Minister would consider that unacceptable—I certainly do. Finding a form of words that clarifies that position in the Bill would, if nothing else, give me some comfort that we have done our job in scrutinising the clauses.
I turn to some more probing points. What powers would the Home Secretary have in relation to an individual case? I am thinking of an asylum seeker in my constituency. We do not get many in Winchester, but I am sure that other hon. Members have quite a number of cases where they feel the need to write personally to the Home Secretary. I am still not entirely clear whether everything that we have discussed could be bypassed by the Home Secretary's choosing to intervene and ask for a case to be considered. If so, where would that fall in the system that has been outlined by the Government?
What about a change of circumstance? Quite a rigid programme is put in place here. There is no ability for an individual to review a tribunal's case and a tribunal cannot look twice at a case. If circumstances in the asylum seeker's country changed or if a new bit of information came to light, I hope that the system could cope. I hope that the Minister can explain how that can be done within the existing structures. We do not want a system where we get gridlock. We do not want the asylum seeker or his representative to receive a letter explaining that although the circumstances may have changed there has been a review and that is it. I hope that such changes can be taken into consideration.
Finally, I should like to raise the issue of the president's power in relation to the instructions that he can give to other members of the tribunal, particularly in relation to issuing a practice direction. At present, the chief adjudicator can issue a practice direction to other members of the tribunal, but it is very much along the lines of explaining the options. It is almost an administrative document setting out what the tribunal can and cannot take into consideration.
I understand—perhaps the Minister could clarify this—that the proposed powers for the president change the force of the practice direction, so that in future it can almost direct the tribunal as to what its decision should be, irrespective of the administrative arguments. That may be the issue that the Minister was discussing earlier in relation to a number of cases—I think that ''starred cases'' was the phrase that he used—in which the decision was virtually known anyway because it was a starred case. However, I would welcome some clarification on practice directions.
I am sure that I have omitted a number of key issues, but that others will pick them up. Although much heat and emotion were generated in the discussion of clause
7, when the dust settles the issues of principle that are being dealt with in this clause will have a much longer-lasting influence on the judicial system.
I urge the Minister to think carefully about removing subsection (7). The Government could still achieve many of the things that they seek to achieve through the proposed streamlining, even if they removed that subsection and retained the possibility of review by a higher court. They would win more friends that way, and still achieve their purpose of making improvements to the system. I hope that the Minister will consider that suggestion carefully.
First, I want to raise a point about subsection (7), which is the key subsection in the alteration to rights of appeal. The debate that we have had so far on the Bill as a whole, and particularly on this clause, has been framed in terms of asylum seekers. However, if I understand correctly the provisions of the clause, and particularly those of subsection (7), which will mean that the tribunal's jurisdiction is final, those provisions will affect any immigration decision that is currently appealable at the Immigration Appeal Tribunal. If that is the case, they will affect more than just asylum seekers and will apply to many cases in which the argument that the provision is needed because of the incentives for people to delay simply does not apply. If, for instance, we were dealing with a case that involved entry clearance, no one would try to lodge an appeal for the purpose of delaying a decision—quite the reverse. It would therefore be helpful to the Committee for there to be greater clarity about the range of appealable decisions that will be affected. If we are considering numbers, we should not just be taking the numbers of asylum claimants and the effect on them into account. Arguments about delay would not apply to cases other than asylum claims.
Some of us will be familiar with cases in which constituents have approached us about a decision that has affected a member of their family, in which an appeal has been lodged, but where it is also possible for an entry clearance manager to review a decision. In such cases, it is fairly routine that when an appeal has been lodged the entry clearance manager will review the decision, although in my experience very few decisions get changed by such a review. If the same people who have taken a decision are asked to review it, what is the likelihood of that being changed, compared with the possibility if someone else reviews it?
We should also think about the rationale for dealing with unfounded appeals. In view of the discussion about statistics, it seems that there has been a tendency to equate unfounded appeals with appeals that do not succeed, but the two are not necessarily the same thing. In 2002, about 23,000 people asked for permission to appeal to the IAT and roughly 16,000 of them were turned away. In other words, the IAT believed that there was nothing remotely worth looking at in those
cases and threw them out. A lot of the others did not succeed; about 40 per cent. were rejected, and roughly 50 per cent. were remissions.
The Minister said that remission was not necessarily the same thing as turning over the original decision, and I understand that. But there is an important difference between regarding appeals as absolutely unfounded and equating that with appeals that are refused. We are used to courts considering appeals that they decide they have to turn down when they have looked at the detail. That does not mean that the appeal was totally unfounded and had no merit in the first place; the court probably would not have looked at it if it believed it had absolutely no merit. We must be careful about the interpretation of the some of the statistics.
Another issue that concerns me is the way in which the first level, the adjudicators, operates. That sometimes leads to problems, which may translate to the new system. Too often, when the adjudicator considers the case, it is the first time it has been looked at in detail. Hon. Members who deal with immigration and asylum cases will be familiar with people whose initial application has been refused on the grounds that the SEF—the statement of evidence form—has not been returned in time. There is a tight time limit for the form to be returned and I have come across a significant number of cases in which there have been disputes about whether the SEF has been returned in time.
In some cases the Home Office has agreed to turn the clock back and to look at them again but not infrequently the cases end up going to appeal, and the first time they are looked at it is by the adjudicator. The adjudicator is not the second level—the check on the initial decision—but actually takes the initial decision. In such cases, there is no second look. If the Government are going to take that route, they should think about the return of SEF forms and consider whether changes could be made to the system in which a large number of cases are rejected purely on the grounds of non-compliance, when there are reasons why the SEF has not been returned in time.
We should be careful with arguments about quality. We do not have appeals because we view the judicial system as a whole as having less competent people at the bottom of the ladder and more competent people at the top. The reason for having appeals is that sometimes conscientious, competent people make mistakes. We all make mistakes; it does not matter how conscientious or competent people are, they can still make a mistake. Fundamentally, that is the reason for appeals; we do not have appeals because the better people are at the higher levels of the system.
It might be interesting to consider how many appeals were allowed or rejected by individual adjudicators. I have never seen those figures; I have heard it suggested anecdotally that it might be interesting to see them. What sort of patterns emerge? What patterns would emerge if we looked at how many decisions by individual adjudicators reached the IAT, were considered by the IAT and were overturned by the IAT?
If we are going to move to single-level systems, consistency in decision making becomes critical. One of the reasons for having checks is to try to deal with inconsistencies and to set binding case law. I accept what the Minister said this morning about the star system. It is important that that system is there to set the binding cases.
The hon. Member for Winchester (Mr. Oaten) raised the question of the Home Secretary's powers. I cannot see anything before us that would alter the ability of the Home Secretary to make decisions on immigration cases outside the rules. As I understand it, that power will still be there. That gives me some concern, as I suspect that one of the impacts of tightening appeal systems will be a lot more people sitting in my surgeries. I suspect that a lot of us will have a lot more people sitting in our surgeries, wanting us to make cases to Ministers and to make cases that decisions should be made outside the rules.
I am not a great fan of making decisions outside the rules. Sometimes, if a constituent comes to us, we believe that they have a strong case and we are able to persuade a Minister. If so, we feel that we have done a good piece of work and done something for our constituents. However, I would rather we did not have lots of decisions taken outside the rules; our systems should deliver the right decisions and should work, rather than our being asked to play a more significant part in the system. That is one of my concerns; if we start to construct the systems, it will impact on every one of us who has significant numbers of asylum and immigration cases to deal with. We will get the work.
I hope that the Minister will be able to reply with particular reference to my first point about the range of decisions to which the clause will apply. It seems to me that it will apply considerably more widely than just to asylum seekers. Everyone ought to understand to whom it will apply. Members who deal with asylum and immigration cases and see the range of cases will also find that the rights of their constituents, or the relatives of their constituents, are affected by the clause.
The proposition behind amendment No. 43 is that the Government need to persuade us that there is good reason for getting rid of the Court of Appeal as far as asylum cases are concerned. The hon. Member for Walthamstow (Mr. Gerrard) made a thoughtful speech. However, he was not quite as angry in his speech as he appeared on Second Reading. I remember him saying to the House:
''Clause 7 is bad, but it is not the worst part of the Bill. The most serious part of the Bill . . . is clause 10''.
He went on:
''The Bill goes further than any that I have ever seen in removing judicial oversight of the asylum system.''—[Official Report, 17 December 2003; Vol. 415, c. 1638-9.]
He has seen a few Bills, I can tell you, Mrs. Roe.
Too many, the hon. Gentleman says, but I described what he said about this Bill. He said that he could not help but wonder what he and his colleagues would have said if a Conservative
Government had introduced such provisions. It was fair of him to say that and he may speak further in this debate, but I am sure that he will not. He is an independent man and I respect him for it.
Two propositions relevant to the debate are not susceptible to challenge. The first is that non-nationals who are in the jurisdiction of our courts should be entitled to the same protection and standard of justice as our own nationals. Any decent person must surely agree with that proposition, yet under the proposals non-nationals will get second-class treatment in terms of their ability to make an appeal. The second proposition is that there is merit in having the Court of Appeal as one of the back-stops. That is true not just because some of our most senior judges sit there, but because those judges to a great extent create the jurisprudence and the precedents that lower courts follow that are so vital in a democracy governed by the rule of law.
The Court of Appeal should be more heavily involved, as amendment No. 43 would require. It has decided a large number of cases that give clear and binding precedents on many issues, particularly since the implementation of the Human Rights Act 1998. Some of those cases illustrate the importance of the court and its jurisprudence. The case of Ullah gave a fundamental precedent on the extent to which anticipated human rights breaches in the home country require the UK to offer refuge and protection. The case of N, with which Home Office officials will be familiar, dealt at length with the UK's obligations towards an alien who is ill and will not receive treatment in his own country comparable to that which he would receive in the UK. We shall debate the role of the House of Lords before too long, but it has also contributed dramatically to legal jurisprudence.
I have spoken to adjudicators, many of whom would rather look to the Court of Appeal for guidance than to anywhere else; certainly more than to the European Court. The Court of Appeal is robust and sets good precedents. The case of N is a good example, which I advise Committee members to read. It was an AIDS case, where the applicant came from Uganda. The Court of Appeal, in laying down the law, was rightly critical of the leading European case on the subject, namely D v. the United Kingdom. Incidentally, Lord Justice Laws was heavily critical of the Home Office for again not being represented at a hearing.I mention those cases in passing to illustrate the Court of Appeal's importance, which lies not just in the general principle that every person in our jurisdiction should have rights, but in the case law that it lays down.
I pause to mention that it is ironic that we are allowing normal rights of appeal for asylum seekers who are charged with document offences under clause 2. Those rights extend all the way to the Crown court, presumably with leave to the Court of Appeal and the House of Lords. Nothing is stopping asylum seekers there, but they are being stopped in clause 10, which is slightly odd. I can think of no precedent for that.
The Government must have a reason for getting rid of the Court of Appeal and we need to know what it is. What mischief do the Government need to address? Will the Minister say exactly why the Court of Appeal, with all that it stands for, needs to be axed utterly? He will say that it is not being axed utterly, because it can ''give an opinion''. Well, as Clint Eastwood might say, that really makes my day. Whatever the Minister says, the Government are depriving the Court of Appeal of any meaningful role. What is the problem? Is it too slow? I do not think that it is, but even if it were that would be an administrative matter that could be dealt with simply. Is it because it is absolutely overwhelmed with the number of cases on which it has to decide? I shall judge from figures that the Minister produces in due course whether that is the case.
I do not believe that the Court of Appeal is being overwhelmed. I have seen several sets of figures. The Bar Council produced some that showed that the number of appeals from the IAT to the Court of Appeal has been rising very slowly. In 1999, 70 new cases were filed; there were 62 in 2000, 50 in 2001 and 80 in 2002. That does not seem to be very many. That cannot be gross abuse, can it?
Oddly enough, in 2002, out of 58 appeals that were disposed of by the Court of Appeal, 20—one third—were allowed, and that was after they had been through the process of initial decision, adjudicator, tribunal and then Court of Appeal. Even after those four stages, the Court of Appeal was allowing appeals. Is that not evidence that the IAT, even with its experience and expertise, is capable of committing errors of law in a percentage of cases? I asked the Home Secretary, in a written question, how many asylum and immigration cases were heard by the Court of Appeal and the House of Lords in the latest year for which figures were available. The Home Office answered:
''During the period from 1 October 2002 to 30 September 2003, nine immigration cases were heard by the Court of Appeal (five asylum cases and four non-asylum) and four cases were heard by the House of Lords (three asylum cases and one non-asylum).''—[Official Report, 14 January 2004; Vol. 416, c. 755W.]
What kind of abuse is that? That is not abuse. It is an example of very few cases, dealt with in an authoritative way. Strange to say, it depends whom one asks. I also asked the Lord Chancellor's Department, now the Department for Constitutional Affairs, how many asylum appeals were considered by the Court of Appeal and by the House of Lords in each of the past two years. I do not know whether it conferred with the Home Office before answering, but I received a wholly different answer. We have to make of that what we will. Some of us will accept the Home Office figures, some those of the Lord Chancellor's Department. In any event, the Minister responded to me that, in relation to asylum matters,
''During the two-year period between 1 December 2001 and 30 November 2003, the Court of Appeal Civil Division made decisions in 248 appeals''—[Official Report, 15 January 2004; Vol. 416, c. 837W.]
Oddly enough, we have not focused on this very often, a number of those appeals were brought by—guess who?
My hon. and learned Friend is right; the Secretary of State. Clearly the Government consider that there is a role for an appeal to the Court of Appeal, having brought some of the appeals themselves. The fundamental point remains that the House of Lords and the Court of Appeal really are not the problem. As the hon. Member for Winchester said some time ago, there is an abuse, so one gets rid of the system. I was struck by what he said. How can the Government say that abolishing the Court of Appeal will bring efficiency into the system? That does not make sense on any grounds at all.
I turn to amendment No. 45, which deals with paragraph (e), concerning the decision to remove a person from the United Kingdom. That is not capable of challenge anywhere, so far as I can see. It brings us back to the vexed issue of judicial review. We had a little chat about that earlier, and I made the point in an intervention that if there has been a lot of judicial review, a great part of it has been in relation to refusals to grant asylum support.
If the Minister complains about judicial review, he has a point. Anecdotally—I have always found anecdotal evidence to be the best—I understand that some applications to judicial review are made to prolong an applicant's time in the country indefinitely. That is helped by a system in which the time limit for making an application is three months, with the case heard months later. That is not the fault of the Court of Appeal. There are problems with judicial review, but that is not to say that we should get rid of it in its entirety. We should closely examine it to find how it can be improved. Delays in lodging and hearing judicial review are the main problems.
If there is an abuse of judicial review, why are we not focusing our minds on better ways to run the system? We should not abolish the principle of judicial review simply because parts of the system are not working well. Can the Minister ask his officials to deal with alleged abuse of judicial review through control or remedies? Perhaps we need tough requirements and rules on leave, costs and legal aid.
We have heard precious little from the Government today about statutory review. We heard a great deal about it from Baroness Scotland in the other place about a year ago. Statutory review relates to a refusal of leave to appeal from the IAT. That replaced judicial review for all decisions made by the tribunal after 9 June last year. Many people say that the statutory review procedure was effective and useful. In contrast with judicial review, it included a 14-day time limit from receipt of the decision. It is a paper-only exercise; a decision from a judge follows an application for statutory review in about seven days. Strict time limits shorten procedures.
The Government like to heap blame on lawyers' shoulders; the Home Secretary in particular likes to heap it on judges' shoulders. A small proportion of lawyers advise clients to go for judicial review, but they are less inclined to do so if there is a shortened process. That is for the obvious reason that the shorter the process, the less money the lawyer receives. That has been put to me by several high-calibre lawyers who operate in the field of statutory review.
I shall move on to amendment No. 45. In July 2002, Baroness Scotland said:
''It is essential that we have a properly functioning system of immigration and asylum appeals and the opportunity for High Court judicial scrutiny of decisions.''—[Official Report, House of Lords, 29 July 2002; Vol. 638, c. 726.]
That was not a long time ago. Does the Minister dissent from the proposition, expounded only in summer 2002, that we need an opportunity for High Court judicial scrutiny of decisions? If that was right then, is it right now? If it was wrong then, let the Minister tell us. If it was plainly right then, which I suspect it was, I cannot for the life of me think what has made it plainly wrong today.
Paragraph (e) is a draconian measure, which says in effect that no court can question any decision to remove a person from the UK or any action in connection with it. How wide that is. An immigration officer who decides to remove a person will be excluded from any judicial oversight, even if his actions are irrational, unfair or beyond his powers. The Home Secretary relieves himself, his departmental officials and immigration officers of any need to be concerned about judicial scrutiny of their actions. There is to be none.
What else did the Baroness Scotland of Asthal say about statutory review, to which I alluded, and which is a direct ability to make an application to the High Court? In July 2002, she said:
''statutory review is an important part of our policy to provide a fair but swift and efficient system . . . Statutory review provides a quick process to correct errors that may have been made by the tribunal, so that cases can be sent back to the tribunal''.—[Official Report, House of Lords, 29 July 2002; Vol. 638, c. 727.]
How right she was, but the Government seem to have turned 180 deg in their view about any High Court supervisory role over actions by immigration officers or cases brought by the lower tribunal.
Surely there is a possibility, albeit remote, that a Home Office official may get it wrong when deciding to remove someone from the UK? We do not have the old independent documentation centre that we used to argue for in 2002, so where does the aggrieved party go if the official ever gets it wrong? Truly, the removal of any judicial oversight over actions of Home Office officials sets a precedent that should trouble us all.
My amendments Nos. 46, 65 and 66 relate to the reference to the appellate court, and make a slightly different point. The Bill says:
''The President of the Tribunal may refer to the appropriate appellate court a point of law which arises in the course of proceedings before the Tribunal.''
I am trying to change ''may'' to ''shall''. Incidentally, the president is a powerful figure under the Bill. He is the only person who can ask the Court of Appeal to
review an asylum and immigration decision taken by a tribunal that he heads, and then only on a point of law. As we said, the Court of Appeal cannot decide the point of law. All it can do in the course of proceedings, of which, incidentally, the president remains seized, is to give its opinion to the president who will then decide the case. The president is given heavy powers under schedule 2, which we will discuss in due course. I believe that if an important point of law is raised, the president must—shall—refer it to the Court of Appeal; hence my amendment No. 46.
I further believe that the Court of Appeal's opinion should be binding, which is the reason for my amendment No. 65. In an earlier debate, the Minister remarked that in the real world, the tribunal would always take note of the Court of Appeal's opinion. If that is true, what is the problem with the Bill stating that that opinion ''shall'' be binding? We spend our lives being told by the Government, ''Don't worry. The Bill says this, but it will not operate like this in practice. We shall issue directions.'' That happened when we discussed clause 2, and during consideration of the Criminal Justice Bill. I believe that I commented on that some time ago, when we talked about teenagers' consensual sexual activities falling short of intercourse.
Issuing directions does not matter. How do I know that they will issue directions? What conversations am I having with the chief Crown prosecutor? How do I know who will be prosecuted for what? All I have is the Minister's assurances. He is an honourable man, and I have no problem whatever in commending his integrity, but that is not the point. The point is what the Bill says.
If the Bill says that it is an offence to arrive without documents, we have to rely on the Minister saying, ''Well, we shall prosecute only those who tear them up.'' In any event, clause 10 refers to the Court of Appeal's opinion. The president has to have a look at it, but how do we know that it will be binding on him? It is no good the Minister just saying, ''Well, it will be, because he or she is bound to take it into account.''
Amendment No. 66 asks: what about the House of Lords as the court of ultimate resort? Is anyone seriously saying that the House of Lords is part of the abuse that needs to be cleared up, or that the handful of cases that reach the House of Lords in a year are the problem with which we are dealing today? I cannot believe that anyone in their right mind would say that. I cannot believe that anyone in their right mind would say that there is an argument in principle for saying goodbye to judicial oversight by the House of Lords, but that is what the Government are doing. Although we are talking about only half a dozen cases a year, or even two or three, they could be very important indeed. There is no reason to axe the House of Lords. Are three cases a year a problem? I doubt it.
The abuses that the Government have to deal with are different. Yes, there is a bit of abuse among some lawyers and immigration advisers, so deal with it. That
can be done. The Government should not deal with it simply by saying that they will cut out all judicial scrutiny.
As we have said before, we need better-quality initial decisions made sooner. The other day, I went through a flow chart—I have recited it to the Committee once—explaining how, under the present system, it can take nine, 10, 11 or 12 months even to get to the tribunal. That is where the problem lies. I have seen the number of initial-decision-making staff at the Home Office drop every year. I wonder whether hon. Members know what has been happening to initial decision makers. I shall tell them. The number of full-time equivalent staff deployed on making initial decisions on asylum applications was 477 in October 2000. By October 2001, it had gone down to 465, and by October 2002, it was 396. By October 2003, it had gone down to 365—terrific! So much for pouring resources into initial decisions. That is pouring them out, never mind in.
What about the terrifically enhanced salaries that ensure that the Government get people of the highest calibre? What about the magnificent 27 days' training? The fault in the system lies there, not with the House of Lords. Does anyone know why, when an initial decision maker makes a decision, it takes four months to get to the adjudicator? The appeal is handled principally by the Home Office—that is the Department that handles it. That is why things get there late. Is that the House of Lords' fault?
Ah! I had a private bet with myself—as I have to pay myself, I shall have to admit that I either lost or won—that it would not be long before someone said that the situation was worse under the Tories. We are, unless I am greatly mistaken, seven years into the Labour Government. The excuse that came out in 1997-98 about the Tory Government was one thing but, seven years on, the buck stops with this Government and this Minister.
That is where the buck stops. It did not stop seven years ago. I am tempted to talk about the number of asylum applicants in those days and the bilateral treaty that we had with France, which sent every false claimant back—but I shall not. I hope that the hon. Gentleman will not say to me in a year's time—if the Government survive that long—that it is all the fault of the Tory Government because, by then, my response will be that we will be in the eighth year of the Labour Government.
So there it is—a very sorry situation indeed. It is a sorry situation when a lot of Labour Back Benchers are going to have to put their names to the proposition that the way to deal with problems in the asylum system is to say, ''We shall have no appeals whatever to the High Court, the Court of Appeal or the House of Lords.'' I hope that they can live with that; I believe that, secretly, they do not want it. I say to the Minister that he must, before too long, come to this Committee or on Report with an amendment that will give the
Government credit and respect. By doing that, he will have restored the principle that, in this country, the courts matter.
Subsection (7) is intended to streamline and to speed up the appeal system. My hon. Friend the Member for Walthamstow made the relevant point this morning that, when asylum seekers come to see us in our surgeries, they do not want to extend the appeal process. They want a decision as early as possible. He is almost 100 per cent. correct in that assumption. I have found in my surgeries that, when an asylum seeker comes to see me to discuss their case, and if there has been a delay in receiving a judgment, they are keen to precipitate—indeed, they are desperate to achieve—a positive result.
Too often, asylum seekers—I speak from experience as I have many in my constituency—have a mindset that is not helpful to the process. In an ideal world, asylum seekers choosing to come to Britain would think, ''I will apply for asylum when I am in Britain and, if I ultimately fail, I will leave.'' I know that that is not entirely realistic. However, too often the mindset is simply, ''I will apply for asylum, I will stay in Britain but, in the meantime, I will appeal at every level and ultimately I will stay in Britain. End of story.'' I have spoken to many asylum seekers who have said, ''My appeal has been rejected. How do I still stay in the country? My judicial review has been rejected. How do I remain in the country?'' That is the root of the problem that the Government are trying to address.
The judicial appeal process is often—not always, I accept—used as a way of deferring ultimate removal from the country, whether by the authorities or voluntarily by the asylum seekers themselves. Justice is, of course, expensive. We have discussed that in previous sittings. None of us should disagree with the principle that the cost does not come into it. If we seek to have a just outcome, we must foot the bill, whatever the process demands. None of us would object to that principle. However, I object to the fact that, in the current system, the public purse is used to fund ill judged and inevitably unsuccessful appeals simply to delay the removal of a particular family. I do not think that that is a good use of public money. I do not say that, because it costs a lot of money, we should remove the right of appeal. I say that that right is often abused. We must consider an alternative system.
A new industry has emerged in recent years. Sadly, in my constituency, there are asylum and immigration advisers who are not even lawyers. They pounce on new asylum seekers coming to Glasgow, offer them advice and assure them that they will not have to pay for it because it will come out of legal aid.
I am saying that as a constituency Member of Parliament I have many complaints about specific providers. The hon. Gentleman asked whether that was the point I was making but it was not. My point is that my personal dealings with some of the advisers have been most unsatisfactory. They advertise
their services, they get the legal aid and sometimes they screw up—if you will forgive my phraseology, Mrs. Roe. They make a mess of an applicant's papers and, as a last resort, they refer the asylum seeker to me as the constituency MP.
As someone who has not, to date, charged for that service, I take the matter in hand and do the best that I can. Judging by the number of Christmas cards that I receive from asylum seekers in my constituency, I hope that I do a good job in representing them. I have a reasonable success rate in fighting for asylum seekers to remain in the country if they have legitimate reasons for doing so, but it is incredibly frustrating when the system is abused, not just by asylum seekers but by practitioners in the law, whether licensed or otherwise.
The hon. Gentleman mentioned that there have been cases in which qualified solicitors have abused the system. That is a dangerous allegation unless he can back it up. [Hon. Members: ''It is true.''] Usually in a democracy, with a system based on the rule of law, we do not make an allegation without specific evidence to back it up. Is the hon. Gentleman suggesting that he has pursued a complaint with the Law Society of Scotland, for example, in respect of a Scottish solicitor?
I understand the hon. Lady's point. As she is a solicitor, she is perfectly entitled to make that complaint about my argument. I do not deny that she has, some would say, a valid point.
The first Standing Committee that I served on was the Proceeds of Crime Bill, which changed many practices among solicitors throughout the United Kingdom. We were vilified for suggesting that solicitors might not always be of the highest moral character. Solicitors probably have the best-adapted and most efficient lobbying techniques of any group of people and they should be glad that the hon. Member for Perth (Annabelle Ewing) is happy to represent them in this Committee.
I caution my hon. Friend about being so generous with his co-national colleague in defending all solicitors from the suggestion that they may be complicit in using the law in a way that they should not. There is a difficulty with that use of the law. In effect, the client benefits because what the client wants is to delay the process as long as possible. Therefore, the solicitor may be acting in the client's interest while acting in a way that the law did not intend.
I am grateful to my hon. Friend and I agree with him. I disagree only with one point. He referred to the hon. Member for Perth as one of my co-nationals. We are all co-nationals on this Committee since we are all from the same country.
I do not want to enter into the argument between the hon. Member for Perth and the hon. Member for Glasgow, Cathcart (Mr. Harris), which seems to have reigned across the Committee
today and on previous occasions. I will leave it for them to sort out, perhaps in the Tea Room or another suitable place.
Will the hon. Gentleman extend the logic of his submission to this extent? He argues that, because some lawyers misuse the immigration and asylum system, the answer is to abolish the appeals system. I presume therefore, if he accepts, as he must on his argument, that there will be some lawyers who are incompetent or who abuse the criminal justice system, that he would wish to see the end of the criminal appeal system. He cannot have it both ways. There are answers to this problem but he has reached the wrong one.
Will my hon. Friend also welcome the measures outside the Bill where the Government are dealing with legal aid and better accreditation for both advisers and lawyers who give asylum advice?
Yes, I certainly welcome those measures. Once again, I will not be too diverted on that. I simply regret that I will be far too busy to serve on the relevant Committee.
I have never been in opposition, and long may that continue. The hon. Member for Winchester made an excellent contribution, some of which I agreed with, but some of his solutions to the problems that the Government are trying to tackle are a bit self-indulgent. Instead of the wording in subsection (7) he suggests the phrase ''better training'', and that we should have better information on the countries from which asylum seekers are coming. That sounds fine and worthy. If that is the Liberal party line, I am sure it will go down well with the Liberal group in Parliament and the small constituency that it hopes to represent. The Opposition can presumably get away with not coming up with hard and fast solutions. Faced with the issues facing this Government, we have to come up with a bit more than saying we should have better training and better information.
I thank the hon. Gentleman for his kind comments, and I will deal with the others. Why are 22 per cent. of initial decisions being found wrong on appeal? Something must be going wrong with the system. Training and better information could improve that. Those seem perfectly sensible suggestions. What is his reason for so many wrong decisions being made at the initial judgments?
I will come on to that later. I simply feel that by suggesting better information and, presumably, motherhood, apple pie and being kind to puppies, the hon. Gentleman will not offend anyone or
disagree with anyone. If he put himself in a Minister's shoes he might be forced to come up with some practical solutions instead of warm words.
If the hon. Gentleman thinks for one minute that by taking this position my party is being populist he is completely wrong. I am not winning any friends by taking this position. The easiest position that I could take would be a more tabloid, right-wing position. That would win me votes. We are setting out a principled view that will not help to win us votes.
I do not think that I mentioned the word ''populist'', but the hon. Gentleman's argument appeals to a particular constituency. He asked why we need the measures as the number of applicants is going down. The reason for the downward trend is the reforms introduced by the Government earlier in this Parliament that his party opposed. He cannot have it both ways. The trend is downward, the Government are trying hard, and will try harder; but if we are continually opposed by him and his party, he can hardly turn round and say that we need no more reform. Previous reforms were successful, but he opposed them.
I seek reassurance from my hon. Friend the Minister. I understand the seriousness of the points raised by the hon. Members for Winchester and for Woking about the lack of judicial oversight on the work of the immigration and asylum appeals panel. If members of the tribunals feel that there is judicial oversight, we should be fairly confident that they will take great care with their decisions and conclusions. However, having agreed in principle to the single-tier appeal system, is it the Government's intention that, because of the removal of judicial oversight, the tribunal members will take greater care, and investigate more deeply? The hon. and learned Member for Harborough (Mr. Garnier) is having a hard time keeping a straight face, but that may be one effect of removing judicial oversight.
I do not suggest that those people do not take their jobs seriously now, but if they know that their decisions cannot be referred to a higher body, I hope that they will bear that in mind and be very careful about making decisions that could have an adverse effect on the lives of the people in question. I hope that my hon. Friend the Minister will reassure me that in the many cases where there is a reasonable doubt, the lack of judicial oversight will cause the tribunal to give the benefit of that doubt to the applicant.
I shall speak to amendments Nos. 142 and 143. We have heard much about subsection (7), and we know that it has engendered widespread concern throughout the United Kingdom. I put it on the record that that is the case also in Scotland. For instance, concern has been expressed by the Scottish Trades Union Congress—that may interest the hon. Member for Glasgow, Cathcart—the Scottish Churches Racial Justice Group, the Scottish Refugee Council, and last but not least in this non-exhaustive list, the Law Society of Scotland, of which I am a non-practising member.
Referring back to a previous debate, if there are problems with specific solicitors, be they north or south of the border, the Law Society of Scotland has a remedy. If a complaint is made, it must be investigated. I imagine that that is a more appropriate route than seeking to defame a whole profession for the actions or wrongdoings of a few.
It is a matter of natural justice. It would be like attacking all journalists—I understand that that was the hon. Gentleman's profession prior to his election to the House—for the less attractive actions of a few.
Can the hon. Lady enlighten the Committee—the information for England is not helpful—on the success rate of those who complain to the Law Society of Scotland about the bad behaviour or incompetence of solicitors there?
I regret that I cannot give the hon. Gentleman that figure off the top of my head, but he should be able to get it directly from the secretariat at the Law Society of Scotland.
To return to subsection (7), concerns have rightly been expressed throughout civic society, because it removes the supervisory role of the courts over the decisions of the new single-tier tribunal, and removes judicial review with respect to certain decisions on removal and deportation.
If we look first at the implications for decisions of the new tribunal, it is important to recall this morning's debate, when we discussed the limited scope of the tribunal in respect of the review of decisions taken in the first instance. It will be a judge in its own cause; the internal review will deal with points of law only, not points of fact; with respect to the points of law there must be a ''clear error'' of law, whatever on earth that is supposed to be; the internal review will only exceptionally allow oral submissions; and, as we heard both this morning and this afternoon, in conducting the internal review, the tribunal may refer a matter to a higher court for an opinion only, which will not be binding. We have had some indication from the Minister that the tribunal would, of course, take on board the opinion of the higher court, but there is no guarantee to that effect in the Bill. A political statement—I would not call it an assurance—from the Minister is not good enough.
Why, then, are we to have that draconian provision removing, in those particular alarming circumstances, the supervision of the court? From what we have heard so far, it seems to be a question of administrative convenience. It is not acceptable to undermine fundamentally the rule of law on the basis of what the Government deem to be convenient. The problem, identified by the Home Affairs Committee in its report published in December 2003, is the poor quality of decision making at the outset. That is the key, not the appeals process per se.
We have heard lots of argument about the fact that the appeals process is being abused, and we have been given lots of statistics. However, the basic premise
seems to be that because a number of people abuse a legal process, we should take away those legal rights in their entirety. Surely that premise must be challenged in a democratic society in the 21st century. As the hon. Member for Walthamstow said, in terms of potentially abusive appeals, the higher courts are extremely unlikely to hear an appeal if they believe that there is no merit in the case. The hon. Member for Woking cited figures showing clearly that, as far as the Court of Appeal in England and Wales and the House of Lords are concerned, there have been very few appeals. Those appear to be the facts, so we rest with the matter of administrative convenience. If that is balanced against fundamental constitutional principles concerning the rule of law, surely the rule of law must take primacy.
The clause places the tribunal above the law. The Minister said this morning that we must deal with modern realities. However, I would caution him that our founding constitutional principles should not be used as a plaything of the Government. If we wish to depart from them, we must have very good reason indeed, not merely administrative convenience.
Of the two amendments that I tabled, No. 142 is the substantive one. The Law Society of Scotland has said that the provision in subsection (7)
''is too broadly drawn and will ultimately result in a challenge to the legislation before the European Court of Human Rights in Strasbourg. To exclude the range of issues which could form the basis of an appeal such as lack of jurisdiction, irregularity, error of law or breach of natural justice creates a structure which runs contrary to the rule of law and any accepted norm of judicial decision making.''
I agree with those sentiments.
Aside from the key constitutional principles involved, the hon. Member for Winchester succinctly set out the need for such a supervisory role by the courts in asylum and immigration cases, and I endorse his comments. The role of the courts can also act as an incentive to the initial decision makers to get their decision right.
The hon. Member for Woking spoke at length about the removal of judicial review, and I do not want to detain the Committee unduly. However, the provision in subsection (7)(2)(e) virtually confers legal immunity on those charged with the operation of the immigration and asylum system, no matter how unlawful their acts. That is a serious extension of state power, and it is incumbent on the Minister to justify it. I must say that a feature of this Government has been to come up with purported justifications for the unjustifiable.
Subsection (7) is unconstitutional and unduly draconian. It is not in the interests of justice, and it will establish a dangerous precedent. As a Scots lawyer, I am appalled by what is being done to the integrity of the Scots legal system by the UK Government.
I agree in particular with the last point made by the hon. Lady. Subsection (7)(2)(e) is not only all the things that she said, but unnecessary and disproportionate. Is this not the Government who introduced the Human Rights Act 1998 to bring the
European convention into domestic law, and are they not now, through clause 10, disapplying the Act to the immigration and asylum system? If they want to go down in history as having introduced the 1998 Act on one hand and this Bill disapplying it on the other, they must explain themselves.
It is worth considering the ''totality''—a noun that has recently become useful—of clause 10, before analysing the way in which it is touched by the amendments tabled by my hon. Friend the Member for Woking. I am jealous of him, as his style allows him to express a huge amount of anger without losing his temper. I do not have that capacity, and when I am angry, I am angry. When he is angry, he manages to remain calm and understated. However, the Government fool themselves if they think that they can ignore his criticisms because he is not huffing and puffing.
Let us consider clause 10 and what the Government, who were elected to protect the vulnerable, plan to do. Through an amendment to the 2002 Act, the clause will set up a new tribunal—we should not doubt that it will happen, because the Government have a majority, and whether it is a thinking majority is neither here nor there.
New section 105A states:
''The tribunal shall review its decision on an appeal''.
Had we been in the Soviet Union or in the People's Republic of China, we would have expected a judicial system that said that only it—the court of first instance—had the right to—
Order. I draw the hon. Gentleman's attention to the fact that we have already discussed new section 105A this morning. We should now be talking about new sections 108A and 108B.
I am most grateful, Mrs. Roe, for the assistance that you have offered me. However, in order to explain the context of the amendments that we are discussing, it strikes me as imperative—although the Government might prefer us not to—to understand the way in which new section 108A is based on new section 105A. One cannot understand the revolting nature of the Government's conduct unless one sees the true nature of new section 108A in the context of new section 105A.
I have a number of good ideas, Mrs. Roe, and I wish to explain them to the Committee. My hon. Friend the Member for South Norfolk also has some good ideas, and it was germane to the overall debate that he found it appropriate to intervene.
To prevent apoplexy among Government Members, I shall move swiftly on to new section 108A. However, I shall pause briefly to nod at new section 105A, which states:
''The Tribunal shall review its decision on an appeal''.
As I said, we would not have been surprised if that had been the arrangement in the Soviet Union, the People's Republic of China or in other states that are not wholly familiar with the democratic institutions of the rule of law.
I hope that the hon. and learned Gentleman, in his wide-ranging speech, will explain to the Committee how those appeal rights would be exercised by asylum claimants who are cast adrift on the fantasy island that is currently his party's policy.
That is an extremely good debating point, which will no doubt go down well in the Labour party management committee of Cardiff, Central. However, let us concentrate on the Government's policy. When my party is in government, I will accept little quips from the hon. Gentleman. However, his party is in government, and I suspect that when he was in opposition—or indeed, when he was a Minister in the Welsh Office—he would have been ashamed and disgusted that a piece of legislation such as this had emerged from a Labour Government. However, he is happy now to be on the Back Benches and make smart-Alec points about the Opposition. Let him make those points, but let us also concentrate, for the purposes of the Committee, on the Government's policy, which is to be found in the pages of the Bill. I suspect that if he has half an ounce of honour—
I will, but if the hon. Gentleman has half an ounce of honour—I know him, and believe that he has—he will at some stage either regret being party to a Government who pass such pieces of law, or he will speak against them. I am now prepared to listen to him.
When an hon. Member is criticising a particular policy, it is perfectly proper and in order for me—if it were not in order, Mrs. Roe would prevent it—to ask what alternatives he would propose. That is what I asked. It may be a smart Alec point but I am waiting for the smart Alec answer.
I am not in the business of giving smart Alec answers. If the hon. Gentleman does not like what I say about his Government's policies, he should either respond in support of what his Minister and his Government are doing, or keep quiet and perhaps quietly vote with me.
In light of the hon. and learned Gentleman's comments, I am moved to ask why, if he feels so vehemently about the Government's proposals, he and his colleagues did not press for a Division this morning on the specific measure that he says is the basis of all his concerns?
I am sure that the hon. Lady, who I have come to know well over the past year, in another ambit of her life—[Laughter.] I will allow her 20 seconds of embarrassment before explaining that we were on the armed forces parliamentary scheme together. I am not sure that we shared a Warrior armoured vehicle, but we shared one or two other discussions of interest. I suspect that she, like the hon. Member for Cardiff, Central (Mr. Jones), understands the importance of justice, the need for it, and the need not to allow it to be undermined simply for administrative convenience, to borrow a phrase from the hon. Member for Perth.
New section 108A states:
''Exclusivity and finality of Tribunal's jurisdiction
(1) No court shall have any supervisory or other jurisdiction (whether statutory or inherent) in relation to the Tribunal.
(2) No court may entertain proceedings for questioning (whether by way of appeal or otherwise)—
(a) any determination, decision or other action of the Tribunal (including a decision about jurisdiction and a decision under section 105A),
(b) any action of the President or a Deputy President of the Tribunal that relates to one or more specified cases,
(c) any decision in respect of which a person has or had a right of appeal to the Tribunal,
''(d) any matter which the Tribunal—
(i) was obliged to determine in accordance with section 86 of this Act, or
(ii) would have been obliged to determine in accordance with that section had a right of appeal mentioned in paragraph (c) been exercised, or
(e) a decision to remove a person from the United Kingdom, a decision to deport a person or any action in connection with a decision to remove a person from the United Kingdom or to deport a person, if the removal or deportation is in consequence of an immigration decision.''
Subsection (3) says:
''Subsections (1) and (2)—
(a) prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of''— this is worth listening to—
''(i) lack of jurisdiction,
(iii) error of law,
(iv) breach of natural justice, or
(v) any other matter''.
I return to my examples about the Soviet Union and the People's Republic of China. I even suggest that we would not be far wrong to go back to the star chamber in Henry VIII's reign. This is an unnecessary, disproportionate and wholly irregular attack on the rights of the citizens and non-citizens who bring themselves within the jurisdiction of our courts.
The hon. and learned Gentleman has raised a good point, but is he aware that one of the amendments in this group removes the phrase ''any other matter'', and reinstates various powers of the court?
It may do. No doubt the Minister will, at the end of the debate, seek to persuade the Committee that what the Government propose mitigates, if only in some small regard, the worst and most draconian consequences of the Bill. However, we must consider the hon. Member for Hemel Hempstead's arguments about that amendment in the context of the overall design of this part of the Bill.
I have heard him speak on similar issues on other Bills. I have been impressed by his affection for the rule of law and his understanding of the constitutional balance between the Government as an Executive, Parliament as a legislature and the courts and the legal system, which hold the ring when there is a competition between the state and the citizen or between the state and the non-citizen with access to our courts. I hope that I do not embarrass the hon. Gentleman by applauding what he has done in the years that he and I have been in Parliament to ensure that Parliament does its job properly in relation to the two other legs of the constitutional triangle. With respect to him, however, the amendment in question has so far not persuaded me that my arguments are of no value.
Before I leave the text of the Bill, I invite the Committee to consider subsection (4), which disapplies the Human Rights Act. Like my hon. Friend the Member for Woking, I refer to new section 108B(6) of the Nationality, Immigration and Asylum Act 2002, which removes the right of appeal to the House of Lords from an appellate court, which would be the Court of Appeal for England and Wales, the Court of Session or the Northern Ireland Court of Appeal. Why do we need new section 108B(6)? Even now, nobody can get from the appellate court to the House of Lords without the permission of either the Court of Appeal or the House of Lords. It strikes me at first glance that the Government are holding up a beacon to the world to say that they do not respect the judicial independence of our court system and that they want to deal with an administrative problem—the slowness with which failed asylum applicants are removed from this country—by attacking the court system.
If the Government had half an ounce of common sense, they would improve the administration of the removal systems following the failure of an application for asylum. They have not done that, however. Instead, they have gone for the cheap, easy, populist response, which is to attack the legal system, thereby undermining that aspect of our constitution. At the outset they confuse the removal system and its incompetences with the judicial system.
Regardless of which side of the argument one is on, the clause and the amendments go to the heart not only of the Bill but of our judicial system and constitutional institutions. This morning I went to the memorial service of the late Lord Williams of Mostyn. Lord Steyn, the Law Lord, gave one of the addresses, while the Foreign Secretary gave the other. They both spoke to the congregation at Westminster Abbey about Lord Williams's attachment to the spirit of justice. It is
ironic that on the day of his memorial service the Government are pushing through clause 10, which could not be more divorced from the spirit of justice had someone applied their mind to invent a scheme for making it so. It is fundamentally wrong for a court of first instance—almost less a court than an administrative system—manned by officials, to be outside the system of appellate review.
Such a policy would not do in the criminal justice system. If we disagree with the slowness of the criminal appeal system, we do not abolish it; rather, we do something to make it more efficient and effective. I practise law in the field of defamation and frequently go in front of civil juries. Lord Donaldson, the former Master of the Rolls, introduced a system to speed up the process by which civil jury cases went from the period of setting down to trial. He did not abolish the right of the litigant, whether a claimant or a defendant, to go before a jury in court. He ensured that the administration of the court system over which he presided worked more speedily. He required judges who were inferior to him in the court hierarchy to be more proactive, and not to grant adjournments unless there were good reasons.
Lawyers who appeared in frivolous cases, who advanced frivolous arguments, or whose cases led to a waste of time and public money were penalised by punitive costs orders. If the costs did not attach to the litigant, they would attach to the lawyer. Although lawyers can claim to be advancing the interests of their client, they also have a duty to the court. If a lawyer advances a frivolous, time-wasting or money-wasting application or case, they should bear some responsibility.
Judges from the divisional court in London have told me that they do not want the appeal system to be destroyed. Many have begun to visit personal costs orders on lawyers who advance futile and silly cases. Has the Minister considered whether, instead of stripping out the appeals system, judicial and court internal systems could be adjusted to achieve the Government's aim: namely the end of abuses of the court system? The Government should be embarrassed by a proposal that seeks to deny justice to people who have fled tyranny and persecution and arrive in this country specifically seeking justice.
Every decision made by the courts will normally be disagreeable to at least one of the parties involved. One side will win; the other will lose. If someone applies for asylum, makes use of the judicial system to judge the application, and loses, that is disagreeable and may result in their being removed. I fear that, statistically, the chances of being removed are small. That is where the Government are falling down. However, to amend the system, they are examining the wrong part of the problem.
It is possible to make the appeal system efficient without denying justice. There could be a system whereby there would be no appeal from one level to the next, without permission from the lower court or, in the absence of that permission, from the higher court.
Lord Woolf introduced that into the civil appellate system, and it has reduced the number of appeals from the High Court and the lower courts to the Court of Appeal. The Government are missing a trick by going for the easy but wrong option, simply because they think that it will appeal to those who think and care least about justice.
I have mentioned costs orders biting on parties that make frivolous or vexatious appeals. I have mentioned the ability of the court to take punitive action against those who bring such appeals, be they lawyers or applicants. I have mentioned the ability of judges to be more proactive and interventionist, and not to grant unnecessary, lengthy adjournments.
It is vital for confidence in a judicial system that we have appellate justice, not only because the appellate justice hierarchy allows for the lower court to learn— [Interruption.] I am sorry that I am inconveniencing the Whip. He may have another job to do in due course, and I truly hope that if the Bill becomes law, the queue outside his advice surgery is longer than anyone else's.
I dare say that the hon. Gentleman has been in and out of the Room on Government business, so I will forgive him for not following the thread of my argument. I suggest that he reads the Bill if he has not done so. He will see that my remarks are germane to the amendments tabled by my hon. Friend the Member for Woking and the hon. Member for Perth. My remarks may be wholly unappealing to him, but I am afraid that that is just tough. He will have to sit and listen to an elected Member of Parliament expressing concerns about what a Government with a massive majority can thoughtlessly do to the system of justice in this country. If he does not like it, I suggest that he removes himself from the Room. We will call him back if and when he is required.
Finally, I draw to the Government's attention an example of their complete misuse of their own arguments. They say that the appeal system is being misused, that it is too lengthy and that it is costing the taxpayer far too much money. That may be so, but as I said, there are ways of dealing with that problem. One of my constituents, Rogelio Viteri, is an Ecuadorian. Until two years ago, he was the defence attache to the Government of Ecuador in this country. He is a naval captain, although, as it happens, he is more like a Royal Marine in the Ecuadorian armed forces. Some two years ago, he discovered that his military chiefs in Ecuador were running a corrupt system of arms procurement, which he reported to his Government. He was recalled to his capital, imprisoned without trial and threatened with death. His wife, also my constituent, returned to the capital city to see what had happened to her husband. She, too, was assaulted and brought near to breakdown as a result of the treatment that the Ecuadorian military and Government rained down on her and her husband.
Eventually, thanks to the pressure exerted by the Ecuadorian press and others, Captain Viteri was released and told by his military incarcerators that he had a choice; he could stay in the country and die, or go away and live. Unsurprisingly, he and his wife decided to return to Britain, where his mother-in-law and his two young children were still living in Market Harborough.
Rogelio Viteri applied for asylum in this country, and it is not difficult to work out why he did so. The Home Office, of course, decided that his application was unfounded. I am happy to say that the adjudicator at the hearing decided that his case was well founded on the grounds of human rights as well as asylum. One would have thought that the Home Office and the Government would have left it at that if they believed that the appeal system was being abused and unnecessarily used. The Home Office, however, sought to appeal the decision. At the appeal hearing, Captain Viteri and his witnesses gave oral or written evidence in support of his claim that he would come to serious harm or be killed if he returned to Ecuador.
The Home Office did not adduce any of its own evidence or cross-examine any of Captain Viteri's witnesses. Unsurprisingly, his case was upheld at the appellate hearing. What does the Home Office do? One might have thought that they would leave it at that, and let the poor man live in peace in this country and get on with a new life. However, it sought another appeal. That man, who has had to face death in his own country, who has seen his naval career brought to an end as a result of exposing corruption in his own military, has to face a second appeal from a Department of the Government. However, the Government tell me today that they are right to strip the appeal process from our asylum and immigration system.
I leave you with that story, Mrs. Roe, so that you and other members of the Committee can judge where the morality of the Government's thinking lies.
The story that the hon. and learned Gentleman has just told about his constituent involved Ecuador. Perhaps one reason that the Home Office is so keen to pursue the appeal system in the case of his constituent is that Ecuador is one of those countries whitelisted under section 94 of the Nationality, Immigration and Asylum Act 2002, and therefore a country in which persecution of the kind that he has described, which has been upheld by the courts, cannot by definition happen. No asylum application can be entertained from such a country. Does that not give the lie to many of the assertions that we so often receive from the Home Office?
The hon. Gentleman makes an interesting point. I asked the Foreign Office Minister with responsibility for our relations with Ecuador whether there was any Foreign and Commonwealth Office or other public policy reason why the Home Office should continue to want to deny Captain Viteri's judgment. I was told that there was no such
reason. It may well be that in due course the Government will be able to explain to me and to the hon. Gentleman why section 94 is so drawn.
It seems strange to me—I will put it no higher than that for the moment—that we have a Government prepared to exploit an appeals system, but not prepared to adduce its own evidence, or to cross-examine the evidence adduced by my constituent, in relation to a man from Ecuador and his family, or to permit that right to others who may be fleeing persecution, potential death and bodily and other forms of harm in overseas countries. The Government must make up their mind as to where the right and the morality lie. I know how the system can be fixed, but it is interesting that the Government light on the wrong part of the problem in order to mend what they think is wrong with it and to ingratiate themselves with those whose opinions are, in my opinion, least worthy of respect.
I listened with awe to my hon. and learned Friend's speech, as many people will have done. I think that it adds substance to the claim that something novel and important is being done. The phrase ''constitutional outrage'' has been used. He mentioned the Soviet Union and the People's Republic of China, and my hon. Friend the Member for Woking mentioned Mugabe, to jeers from one or two members of the Committee. However, this is a matter of huge seriousness. Clause 10 is the most important part of the Bill. In particular, I want to address the issues raised in amendments Nos. 43, 44, 45 and 66.
Such measures appear not only under this Government. I fear that it is what Governments do, not only a Government of such a complexion. In fact, one would least expect it from Governments of this complexion. I think that it is evidence that one should always be fairly distrustful of any Government. The checks and balances that provide protections to citizens are at the core of our system. They are constitutional fundamentals, which we tamper with at our peril.
In the national cathedral in Washington DC, around the pulpit and supporting it, is a depiction in stone of the barons at Runnymede handing the magna carta to King John. I remember being very surprised and interested to see that, in the very pulpit of one of the most important religious buildings in the United States, lies a tribute not to the glories of those who have power but to the limits placed upon them. If one walks into this building through the public entrance and comes through St. Stephen's Hall, one sees on the right a painting of Sir Thomas More and Cardinal Wolsey, with other Members of the House of Commons. The caption reads:
The notion that we do not have unchecked power—that we do not have arbitrary power, and that no power exists that cannot be reviewed—is absolutely at the heart of our system. There are people who have said that that is one of the great contributions of the Anglo-Saxon system to world civilisation. I think that
it was Kahlil Gibran, the Arab philosopher, who said that the contribution of the English is analysis and self-righteousness. As there are Scottish members of the Committee, I shall not dwell on that point. However, it is true that the contribution of the Anglo-Saxon legal and political system, above all else, has been to stress the importance of limited government, that the Government should be constrained and restrained by those whom they are governing. That is at the heart of our system, and what our courts have always tried to reflect.
The Minister referred to the point about finality in the Bill. It is true that many statutes provide that some decisions should be final, which would at least appear to bar an appeal. However, the courts have always refused to allow such provisions to hamper the operation of judicial review. He quoted two famous textbooks, by Dicey and Wade, in support of his case. I referred to Wade earlier to show that I thought the Minister was perhaps incorrect. In fact, Wade firmly refutes the suggestion that the provisions of judicial review shall be seriously hampered. I have here my old tatty copy of Wade and it says on the back:
''Judges and counsel frequently cite this work in courts of law.''
I hope that if it is suitable for a court of law, it is also suitable for this high court of Parliament.
On page 720, Wade says that
''there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court. Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of words.''
It is true that there have been spats between Parliament and the courts over many centuries over the question of the extent to which Parliament can introduce ouster clauses. Indeed, in some cases, when the courts started to operate administrative law in its modern form in the 17th century, they went too far. Parliament retaliated by introducing no certiorari clauses. I shall not try the Committee's patience by naming all the cases, but the germane point was made by my hon. Friend the Member for Woking—I point to him, but he seems to have transmogrified into my hon. and learned Friend the Member for Harborough. He quoted Lord Denning, who wrote about no certiorari clauses. Parliament had, to some extent, been right to retaliate in order to order to stop the abuses.
I quote Lord Denning in full:
''In stopping this abuse, the statutes proved very beneficial, but the court never allowed those statutes to be used as a cover for wrongdoing by tribunals. If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.''
''This epitomises the court's determination to preserve regularity in the legal system, and to construe every Act of Parliament as intended to uphold it.''
That is to say, to uphold the legal system. Earlier, the Minister mentioned my reference to the case of
Anisminic. Anisminic Ltd. v. the Foreign Compensation Commission is still the leading case. Wade refers to it as the high water mark of judicial review. The crucial words in that case were the provision of the Foreign Compensation Act 1950, that the determination of the commission
''shall not be called in question in any court of law.''
Yet determinations of the commission were called into question by courts of law for five years. In the end the House of Lords granted a declaration that it was ultra vires and a nullity. Wade comments that that shows clearly the great determination of the courts to uphold their longstanding policy of resisting attempts by Parliament to disarm them by enacting provisions that, if interpreted literally, would confer uncontrollable power on subordinate tribunals. The philosopher Karl Popper said that the one thing that we have to fear is arbitrary, unchecked power. The Bill goes in completely the wrong direction in that respect.
My fear, as I looked through my old, tatty copy of Wade, was that perhaps I had completely missed the point. When the Minister said that Wade supported him, I thought that either I had completely misread the Bill or Wade had been completely rewritten. I was loth to take my coloured highlighters and draw all over the latest edition—and I am sure that the House of Commons Librarian would have been loth to allow me to—but I took the trouble to check it, to ensure that the position had not been completely reversed, as it seemed odd to me that the Minister said that Wade supported him. Having done a careful analysis of my edition and the latest edition, I can report that the Minister is right in one respect. I quote from page 709:
''Parliament has not, however, abandoned is attempts to devise a really judge-proof formula.''
That is the extent to which he is right about Wade, and no further.
I rise to clarify how many pages there are in Wade and whether the hon. Gentleman managed to read all of them during the lunch break.
The issue is the chapter of Wade concerning protective and preclusive clauses—ouster clauses. I read that chapter many years ago and have been rereading it at length prior to this debate.
My hon. Friend the Member for Woking mentioned Lord Denning. It is interesting to look at the front of the eighth edition of Wade, where it says
''This edition is dedicated to the memory of Lord Denning who died in 1999 aged 100. A great judge, an architect of administrative law and a friend of this book.''
That makes the point fairly conclusively. I did not want to rely on one textbook, even if the Minister had claimed that it supported him, so I studied with great interest the briefing from Matrix Chambers. When I came into Parliament, I did not think that it was going to be my place to speak up for right-on lawyers, but having read through this first-class briefing, I think that perhaps I should have become one; I might have prospered. My hon. Friend the Member for Woking referred to the fact that the name of the Prime Minister's wife is absent from the list of distinguished barristers and silks. That is strange, but there it is. It
is a good briefing and it makes a number of important points, one of which is that this does not apply only to asylum; it is much wider-ranging.
The briefing says that the clause
''provides a precedent for exempting the executive and administrative tribunals from seeking to understand, apply or be governed by the law.''
It goes on to say that, in the view of the distinguished
barristers, it is a matter of great constitutional significance, particularly at a time of so much constitutional turmoil. The traditional institutions that have served to provide some measure of check are being undermined without any clear understanding of what is going to take their place.