Page 2 of the briefing describes the Bill as follows:
''In effect what has been billed as a measure to speed up immigration decision making is a barely disguised attack on the function and jurisdiction of the judiciary at a time when that function and jurisdiction is needed as never before'', and over the page:
''Whatever the substantive law is there needs to be access to a court to ensure that it is being complied with.''
There needs to be access to a court to ensure that it is being complied with. Either we believe that the courts should uphold Acts of Parliament and the rule of law, or we do not. But if they are to uphold the rule of law it is essential that whatever the law is, people should have access to the courts in order to uphold it. The Matrix brief continues:
''It is this principle''— the principle of access to the court to ensure that the law is being complied with—
''that is threatened by the ouster clause.''
My hon. Friend referred to the list of extraordinary events—the lack of jurisdiction, irregularity, error of law, breach of natural justice and so on—that the Bill would oust. Notwithstanding those matters, there would be no power of the court to look at the case to review the decision.
There is a very good brief from the Refugee Council, Amnesty International and the Refugee Legal Centre and I strongly support its conclusion:
''The attempt to prevent judicial oversight is of major constitutional significance and seeks to put the decision-making process beyond the law.''
I cannot easily add to that, save to say that if members of the Committee were to think that only what I would describe as right-on lawyers come to that conclusion, I refer them to the opinion of the Law Society, a sober group of people, who came to the conclusion that the Bill would mean that
''if a tribunal, in determining an application, made an error of law or failed to give proper consideration to relevant facts, the only redress would be to ask the tribunal to review its decision. This review would only be through written submissions. No matter how erroneous the decision, the applicant would have no means of challenging the tribunal's ruling.''
I have sat in on tribunals, although not immigration tribunals, covering issues such as the disability living allowance, and on behalf of some of my constituents I am extremely glad that the ability to review tribunals' decisions exists. Despite what some hon. Members
think, I have no doubt that while many tribunal presidents and chairman are not judges, their decisions are capable of being seriously wrong. They are capable of ignoring basic facts and the rules of natural justice and it is right that those bodies should be reviewable. The Law Society concludes:
''Clause 10 goes far beyond what is reasonable. The ability of the judiciary to oversee the actions of administrative tribunals is fundamental to the rule of law. This proposal to oust the jurisdiction of the High Court is unprecedented. Bearing in mind that decisions on claims for asylum can literally be life or death matters . . .''
I refer the Committee to the earlier speech of my hon. and learned Friend the Member for Harborough. It is especially reprehensible that the Government should seek to eliminate proper judicial scrutiny of decisions in these cases.
I referred to the opinion of Mr. Ian Miller, the litigation partner at Wright Son and Pepper, a firm of lawyers in Gray's Inn. I say, for the benefit of the Committee and to avoid any appearance of not declaring my interest, that Mr. Miller used to be a flatmate of mine, although in the present climate—
Not yet. Bearing in mind the Minister's boss, quoting a flatmate can only add to the weight of one's views.
Mr. Miller's opinion is this:
''I am sure that the Administrative Court judges are keen to get rid of unmeritorious immigration cases. Surely the sensible course is to have a special fast track admin court procedure on say immigration points of law where permission can be dealt with in a couple of days.''
It has been suggested that the answer is to reform the procedures, not completely to undermine the rule of law. In the absence of such reform, Mr. Miller adds that his instinct is that the current draft, which he describes as a declaration of war with the judiciary, will not stand and
''if there is a case where there is a clear injustice they will get around it as they did in Anisminic.''
My own view is that that is correct. In the end this action by the Government will not succeed, never mind what the other place may make of the provisions in the Bill. I fear that it will force judges to become ever more imaginative. It will undermine the rule of law. It will undermine the logic and the rationality of the law. Ultimately, it will fail. The Minister should note that the book to which he referred is called ''Administrative Law''. Surely the answer is to sort out the administration, not to drive a coach and horses through the law.
The immortal Flanders and Swann said, perhaps of Welsh rugby at the time when they used to win the triple crown,
''And they practise beforehand which ruins the fun!''
My hon. Friend has done the Committee a great service by researching before he speaks. He has dealt with a number of issues that go back into the realms of jurisprudential history but are of great value. I wish the Minister could have been as effective in justifying what he was saying.
The hon. Member for Winchester criticised the Government's approach to the clause and, in particular, their anticipated approach to this group of amendments, as being an overreaction to tabloid headlines. I disagree. I believe that the Government's approach is an appropriately measured reaction to public concern. The difficulty is that they are aiming at the wrong target. For that reason I will support the amendments if called upon to do so.
Anyone who reads my speech on Second Reading will realise that I started sympathetic to the Government's concern about delays in the judicial and tribunal system and the sort of bouncing ball effect with which we are all familiar. Then I heard the figures—my hon. Friend the Member for Woking quoted some of them earlier today and quoted others on previous occasions—which show the relatively low number of cases that get to the higher courts.
I accept that that might change the hon. Gentleman's view, but would he bear in mind that although few cases get to the European court or the Court of Appeal, that prospect is one of the things that keeps these cases going, so that people wait years without decisions being made?
I accept that and I shall shortly come to my amendments, which are probing amendments.
I came to the perhaps unworthy conclusion that the Government have put the clause into the Bill in the expectation that there would be a great row about it in the House of Lords and it would eventually be overturned and become one of those clauses that bounces back and forth between the Lords and the Commons. That would allow that great lawyer, the Prime Minister, to mock full-bottomed wigs, people in tights and so on, instead of dealing with the serious business of the legislation.
I thought that that was why the clause was included, then I heard the Minister, and it sounds as though he genuinely believes that it is because of legal impediments that the Government are failing to deal effectively with what people believe are uncontrolled—not uncontrollable—asylum applications in this country. I suspect that that is just a symptom of the Government. They belong to the Monty Python school of legislating according to myth rather than fact. It is a dishonest sort of politics: they erect a man of straw and then knock him down. They did so on Iraq and weapons of mass destruction, and they did so on fox hunting. The Prime Minister claimed that the House of Lords blocked the Bill, when in fact it had never been near the House of Lords. Now the Government seem to be doing the same with the asylum system. They blame their problems on the courts, even though very few cases get to the higher courts.
I accept the point made a moment ago by the hon. Member for Hemel Hempstead (Mr. McWalter). That said, I sympathise hugely with the frustration of the hon. Member for Glasgow, Cathcart and his hon. Friends. Some expressed their lack of sympathy with
lawyers, whether Scottish or English, loudly, and some, such as the Parliamentary Private Secretary, the hon. Member for Brent, North (Mr. Gardiner), did so under their breath.
The feeling that lawyers are spinning out the process is certainly widespread. In many cases, they are not even qualified lawyers; they are unqualified immigration practitioners. That is not surprising. If we invite people to apply for lots of money, lots of people will join the queue. That is how the legal aid system appears to be working as far as lawyers and immigration practitioners are concerned. If the supposed beneficiary of that money—the individual whose case they are taking up—has no direct control over the price, it is not surprising that they do not necessarily get good value for money. I hope that the hon. Member for Glasgow, Cathcart will join me if we reach amendment No. 124, which is designed to deal with the misuse of legal aid.
I conclude that the Government are dealing with the wrong problem. My hon. and learned Friend the Member for Harborough said that if we have a problem, we must do something to make the system more efficient. He gave excellent examples of how we could make it more efficient. I shall not repeat them: he is more knowledgeable than I am about ways in which the operation of the law could be improved.
My amendments Nos. 120 and 121 are modest and designed to probe—I hope that the Minister deals with this explicitly—whether the definition of the word ''court'' in new section 108A includes tribunals such as the European Court of Justice and the European Court of Human Rights. If it does, and the legislation bans all appeals to those courts, the Minister will at least be consistent. If, however, as I suspect, the legislation does not prevent appeals to those courts, while preventing appeals to the Court of Appeal and the House of Lords—domestic tribunals—we shall have the absurd situation of people appealing to the European Court of Human Rights on matters that they could have dealt with in the Court of Appeal, if only they had been allowed to appeal to it. The point made a moment ago will bear fruit, because those cases will take far longer than any case could take if it were dealt with in the Court of Appeal.
I shall give an example of one absurd case in the application of European law; it happened to one of my constituents and her son, who is a national of an African country. The mother is a British citizen. She was told that
''British citizens are European Economic Area nationals. However, European law relates to facilitating the free movement of European Economic Area nationals, and their family members, within the European Economic area. Therefore, were''
''and his mother to be residing in any of the other 14 member states, and were she to be exercising the European Treaty rights, in the form of employment or self-employment, or were she to have retired from economic activity, then''
Mr. B—I remind the Committee that he is a citizen of an African country—
''could be availed by European law and could qualify for a right of residence in the member state in which his mother was residing. As a British citizen living in Britain his mother cannot be regarded as exercising Treaty rights in another member state, and therefore neither she, or by extension her son, can rely on these provisions''
The letter continues that Mr. B
''as someone over 21, would need to demonstrate that he was dependent on his mother. However, in European law, dependency for relatives in the ascending or descending line can be by choice.''
Mr. B is therefore being discriminated against in this country because his mother is British rather than Irish or Italian, French, German or a national of any other member state of the European economic area. If that is the consequence of importing European law into the operation of our immigration and asylum process, it is absurd. I hope that the Minister will confirm that appeals to European courts are outlawed under the clause.
I am glad to have the opportunity to comment on proposed new section 108A. This is my first opportunity to comment under your chairmanship, Mrs. Roe, and I am grateful for that. We have had a lengthy debate, in which hon. Members raised a number of important issues. That is appropriate, given that the Government are seeking to make a significant change and I know that the debate will continue in another place. I suspect that in the time available, it is likely that we will continue this discussion—
I am told by the Whip that that is not possible. I thought that we would be continuing on Thursday morning. I shall therefore proceed with some haste.
Proposed new section 108A will prevent the judicial review of tribunal decisions. That is the Government's determination, and I make no excuse for our intent. I heard what the hon. and learned Member for Harborough and the hon. Member for Woking had to say, but the Government's case is clear. Our proposal is within the bounds of legality, and the mischief about which the hon. Member for Woking challenged the Government is there in the delays and abuse of process.
It is important to set out the areas in which the provision does not have effect, particularly as regards executive decisions of the Home Secretary. There is still access to judicial review if no right of appeal is available. Some executive decisions that can be made by the Home Secretary are still judicially reviewable; for instance, decisions taken when there is no right of appeal, or no in-country right of appeal. Also, cases in which the decision is not taken as a consequence of a tribunal determination will still be subject to judicial review; for instance, if a failed asylum seeker has exhausted their appeal rights and who puts forward new evidence to the IND as a fresh claim. If the IND decides that the claim was made to delay and frustrate removal and that there were no other legitimate
reasons, the decision could be challenged by the claimant in a judicial review. That will not change. I know that my hon. Friend the Member for Walthamstow and the hon. Member for Winchester were particularly keen to determine the effect of subsection (7)(e).
The new system has the flexibility to deal with changing circumstances. The hon. Member for Winchester picked up this point. If an applicant's circumstances change between the Home Office's decision and his appeal to the tribunal, he can raise those changed circumstances at the appeal hearing. If an asylum applicant whose appeal has been heard and dismissed faces a change in circumstances at that point, it will be open to him to make a further asylum application. The Secretary of State will retain the power to issue a certificate under section 96 of the Nationality, Immigration and Asylum Act 2002 if he considers that the purpose of the claim is to frustrate removal and that can be challenged in the normal way.
I am grateful to the Minister for reassuring me on that point. Is he saying that if there is a change of circumstances, the existing appeal and the decision going through the tribunal would be put on hold, the asylum seeker would have to put in a new application and the whole system would start again? Or is he saying that the system would allow another tribunal hearing to reconsider the new evidence. I am not clear how a new process is started and what happens to the existing process.
I am not saying that. If at the end of the process the applicant suggested new circumstances and asked the Home Secretary to consider new evidence, it would be an executive decision that the Bill does not seek to oust. It would be judicially reviewable. The Bill pertains to determinations made by the asylum and immigration tribunal. That is the point that I am making and it is an important one.
The hon. and learned Member for Harborough mentioned the case of his Ecuadorean constituent. It was effectively a non-suspensive appeal and there has been some discussion in Committee about such appeals. The Bill does not apply in relation to clearly unfounded certificates under section 94 where the applicant is from a country that is generally regarded as safe. In the case in question, the applicant would have access to the higher courts for a point of clarity.
A number of questions have been raised but there are two central points that I must try to deal with. First, a powerful suggestion has been made about the rule of law, the nature of our constitution, the circumstances in which that can be changed, the nature of our tribunal system and, of course, the to-ing and fro-ing, whether that is referring to Dicey or to Wade. Those are important considerations and I want to reassure the Committee that the Government are acting according to the law. We believe that the serious issue in question can be dealt with by review, by having a High Court judge as president of the tribunal and by the power to request a recommendation from the Court of Appeal. We take our obligations under the 1951 convention very seriously indeed; it is important
to put that on the table. It is right and proper for people fleeing torture or persecution to have their claims considered carefully and responsibly by the state to which they are fleeing. All hon. Members who, like me, have many constituents in that situation understand that obligation.
We must understand the delay in the system and the abuse of process. We have discussed the advisers and the legal representations that newly arrived people claiming asylum will seek. The Department for Constitutional Affairs has sought to deal with such issues through accreditation, ongoing discussions with the Law Society and the establishment of the Office of the Immigration Services Commissioner, and by the Legal Services Commission's calling in after five hours claims made by lawyers. All those measures have been the subject of much debate in the House. I do not deny that such decisions are tough, but we must make them responsibly and in accordance with the law. I am quite sure that we are.
If the hon. and learned Gentleman will permit me, I will come to that point in my own way, just as he has spoken eloquently to the Committee in his own way.
Acting according to the rule of law is fundamental and the Government take it extremely seriously. The delay in the system also affects the genuine asylum seeker who arrives and wants to move through the process and become a part of this country. When the process is abused, the person who needs it most suffers. It is important that that point is understood, but it has not been raised in this afternoon's debate.
In considering the mischief that we seek to remedy, it is also important to concentrate on the facts. There was much discussion about statistics this morning. I need to be open and honest with the Committee; I am not here to play statistics, because, as all hon. Members know, they can be used in different ways. Many hon. Members have asked the Home Office and the Department for Constitutional Affairs about the number of applications, how speedy they are, what the processes are in my Department and so on. Those facts and statistics are a matter of public record. Indeed, Select Committees also, rightly, ask for those facts.
I have a diagram that illustrates the problem that relates to this morning's debate about the amendment and what we seek to do. I would like, if I am allowed, to distribute this simple diagram to members of the Committee.
On a point of order, Mrs. Roe. I have never served on a Committee before. Distributing a diagram may be common practice, but I understand
that it is not. Will we have a chance to digest its contents for a few moments, because it will be hard to cross-examine the Minister without doing so?
Further to that point of order, Mrs. Roe. Whether or not one agrees with the Minister, at least one can usually hear what he has to say, and so can the wider public. I assume that the diagram, insofar as it is of value to our deliberations, will be made available to the wider public beyond the membership of the Committee.
I am tremendously grateful to you, Mrs. Roe, because I am distributing the diagram very much in the spirit of co-operation. It is a simple illustration of the nature of the decisions that we receive. During lunchtime, I asked officials to come up with a sample of cases to illustrate my point that we are talking about 3.6 per cent. of successful cases. As I said, hon. Members can examine the facts and statistics that come out of my Department and the Home Office daily, weekly and monthly. For the purpose of illustrating this point, however, hon. Members will see that we start with 100 per cent. of adjudicator appeals, 20 of which will be allowed, 4 withdrawn and 76 dismissed.
Perhaps the hon. and learned Gentleman will allow me to talk through the diagram before he seeks to question me on it.
Of the 42 applications for leave to appeal, 29 are refused and 13 tribunal appeals are heard. Six of those cases are remitted back to the adjudicators. That illustrates that, of the cases that are remitted, only 1.6 per cent. are overturned on remittal and 2 per cent. are allowed from the tribunal. That is how we reached the figure of 3.6 per cent. That is the overturn rate, which, in effect, is slightly more than 2,500 cases a year. Of the many thousands of applications that we see over the year, overturned cases are those that concern the Committee.
Will the Minister tell us the nature of the appeals that form the basis of these 100 cases, the countries of origin of the individuals concerned, the nature of the applications—[Interruption.] It is not irrelevant. Bald figures are totally useless unless they are properly explained. Simply mentioning the figure of 100 adjudicator appeals is an intellectually bankrupt way of explaining the Government's case. If the diagram is to have any value in advancing the Government's arguments, we need to know more about the universal figure of 100. Where do those people come from? [Hon. Members: ''Ridiculous.''] I want to help the Minister, who once practised in the law. If he had put that proposition before one of his opponents, he would have been asked for further and
better particulars. Rather than swallowing the document as though it were the answer to all the Minister's concerns, the Committee is entitled to know more about the genesis of the figures that he produced. That is not difficult for him to do if he is confident of his case.
Mr. Lammy rose—
On a point of order, Mrs. Roe. I am sorry, but some members of the Committee are finding it difficult to come to terms with another novel procedure. One of my difficulties is that the Home Office has already provided statistics in response to the Home Affairs Committee report, which was adduced as supporting material for the Second Reading debate. Those figures do not accord with what the Minister has provided this afternoon. Are we to take it that the Home Office response to the Home Affairs Committee report on the Bill has been rescinded, and that we are to take the new figures as being accurate for the purposes of our consideration?
I say to the hon. Member for Somerton and Frome that, of course, the figures accord, as he will see. This is a simple illustration of how we reached the three points. It is a simplification of the statistics, and he will see that the percentage figure is given for the period 1 October to 30 September 2003. I cannot recall off the top of my head the period for which the statistics that he mentioned are given, but it may not be for that period. I attempted to illustrate how we got to the figure of 3.6 per cent. It is important to say that any concern that the quality of adjudicator decision making is not of a sufficiently high standard to justify moving to a single tier of appeal is not borne out by the statistics. In total, only 3.6 per cent.—between 3 per cent. and 4 per cent.—of adjudication decisions are eventually overturned, despite the many stages of appeal.
May I make progress before I give way? To that extent, we do not need the multi-layered system that we have now. It is right to make the point that we do not have a two-tier system with just the Immigration Appellate Authority and the Immigration Appeal Tribunal; we have a multi-layered system. Because of the nature of the statutory review and the many ways in which disingenuous claimants seek to use the system, those stages add up substantially. The statistics are from the IAA and are for the 12-month period ending on 30 September.
On a point of order, Mrs. Roe. We have just been presented with an unhelpful document containing bland statements and the Minister is basing his premise on the figure of 3.6 per cent. It is obvious to the Committee that that figure is in doubt, as the Law Society, quoting the House of Commons Library, has said. Can we adjourn the Committee until Thursday so
that we can get to the truth, rather than blundering through a series of figures, uncertain as to whether they are true?
I think that the hon. Gentleman relied on figures that were provided by the Immigration Law Practitioners Association, which had not looked at what happens to the remittals. I have explained how we arrive at the figures, and that is why I have sought to illustrate the point, which is relevant to the review.
I have two brief questions. First, the Minister has not yet answered the hon. and learned Member for Harborough, who asked for specific information on what kind of appeals the figures concerned—what kind of cases, and so on. Without that information, the document is meaningless. Secondly, where will this piece of paper be published as a matter of record?
I have already said that the diagram was an illustration of the point. The point raised by the hon. and learned Member for Harborough was not a strong one because, as a lawyer, he is well aware of the many reasons that applicants can use in an appeal. The diagram illustrates that a very small percentage of such appeals are successful. That is the point that I am seeking to make.
The Minister is probably trying to be genuinely helpful by issuing this document. On my reading of it, the overturn rate on remittal is 26 per cent. of all cases remitted. This morning, I was using the figure of 22 per cent. His documentation says that only 26 per cent. of cases were successful. Is he yet in a position to tell the Committee what would happen to that 26 per cent. when the opportunity to appeal is removed? Where would those cases end up in the system?
I thought that it was clear to the hon. Gentleman—I am sorry that he did not get the point—that when cases are remitted back, only 3.6 per cent. of those cases are overturned. That is the eventual outcome. The rest are not upheld as successful cases.
The hon. and learned Member for Harborough asks how that helps the argument. Unfortunately, he was not here this morning, although he had a good reason for being unable to attend. However, he will be aware that hon. Members are suggesting that a high percentage of cases—a third—are now not to be subject to judicial review. It was important to describe the context of what the Government are doing and how many cases pertain to that, and I shall go on to do that. I see that hon. Members are not rising to suggest that the figure is a third, or 66 per cent., as we heard from the ILPA. A much lower number of cases find their way up.
So that we have clearly on the record the very important statistics, on which the Minister is basing the premise of his response to the debate so far, will he write to the Chair and other Members of the Committee not only setting out the table that he has presented to the Committee, so that it is on the record, but reconciling that with the response of the Home Office to the Home Affairs Committee on precisely the same point that he has made in different turns?
I shall endeavour to answer the points that hon. Members raised this morning; the statistics that I suggested were not accurate. I shall use the illustration and expand on that. Of course, that letter will accord with what the Home Office has published. I am afraid that I am not going to write on the substance of statistics right across the Home Office— [Interruption.] The hon. Member for Somerton and Frome says from a sedentary position, ''There's justice'', but I will be happy to write to explain the point.
I shall make some progress. I have cleared the point up as far as I can. I was saying that we must understand the nature of the remittals and bear in mind that when we talk about success, we should not talk only about the number of appeals that arrive at the IAT. We must consider the number of appeals on decisions that are eventually overturned, but I shall write to clarify the statistics further.
Several hon. Members rose—
I shall move on to what hon. Members have said about the rule of law and the constitutional arrangements in this country.
On a point of order, Mrs. Roe. The Minister was asked whether he intended to put the document on the record and, if I may say so, I believe that I have a point of order for the Chair. Will that document be put on the record of the Committee's proceedings?
It is for the Minister to decide whether he wishes to distribute a piece of paper. I allowed him to do so because I felt that it would help
members of the Committee to have it before them when continuing the debate. However, it is for the Minister to decide whether he produces papers.
Thank you, Mrs. Roe.
Strong suggestions were made about clause 10 subverting the rule of law, but those suggestions are entirely wrong. What the Government are doing is significant, but we are not seeking to cause a constitutional outrage or to damage the rule of law. The rule of law is the idea that everything must be done according to the law and that government should be conducted within a framework of recognised rules and principles that restrict discretionary power. This ouster clause does not breach that principle. The Government are acting according to the law. We are restricting judicial review only when there has already been, or could have been, an appeal to an independent and impartial tribunal. The Asylum and Immigration Tribunal will decide cases according to the law, not in an arbitrary way or by abusing its power.
There are core principles that it is right and important for the Committee to consider. The first is the sovereignty of Parliament. Clearly, the Government have presented the Bill to the House and the Committee, and we are being explicit. The Committee has been fully informed about the need to unify the appellate system and about what flows from that unification and the establishment of a single tier. We are specifically drawing hon. Members' attention to the salient features of the judicial review and the jurisdiction that will cease, but we are also proposing alternative arrangements. Under the 1951 convention, we are under no obligation to have an appeal. We must, of course, be within the law—and our proposals are within the law. It is important to understand that we are providing an alternative to the current arrangements.
I said earlier to the hon. Gentleman, and I say it again, I am not going to trade remarks about sections of Wade. I will put the Government position and explain why we are doing what we are doing. Important principles are involved, including the sovereignty of Parliament. Hon. Members will have heard in their constituencies stories of the relationship between certain claimants and certain groups of lawyers. The Government have acted, through better accreditation and through the Law Society, to deal with lawyers who are not as scrupulous as they should be. However, for a range of complex global reasons—among them the trafficking of people—people arrive here making claims that are not genuine. It is right that we should consider how we apply our processes to that situation; that is our responsibility to our constituents. Only this place can
act in that way. The sovereignty of Parliament is essential in that regard, as it is in relation to constitutional matters.
I do not think that there is any dispute about the sovereignty of Parliament, nor is there any misunderstanding about the power of Governments to pass legislation through this House, whether or not they have thought about what they are doing. The principal question is whether the clause is a good thing. Is it wise, and do the Government, represented here by the Minister, understand what they are doing? I understand what he is saying—I know that he is capable of reading out the wording of the Bill, and I accept that the Government have a majority of 175 in the House—but that is not the point. The point is whether what the Government are doing is morally right and constitutionally proper, and I have yet to hear an answer from him on either of those points.
To some extent, the hon. and learned Gentleman has toned down what he said before. However, I started by saying that there is a problem that we need to remedy. We take our obligations seriously. The convention does not prescribe the way in which we bring about an appeal; that is to be determined by Parliament. The situation is clear; we have debated the pertinent statistics, and I shall seek to clarify them further. However, I emphasise that we are dealing with fewer cases than hon. Members have suggested. It is for Parliament to look closely at the issues and to respond. Other important constitutional issues then come into play.
The second concern—that what we are doing is arbitrary—does not stand up. Nobody would challenge the need for the tribunals to be independent, or the fact that the independence of every judicial officer within a tribunal is key. When we talk about the independence of the judiciary in this regard, we must consider each member as an individual. That is why the roles of the president, deputy presidents and senior judiciary in the review mechanism of the new IAT will be fundamental in ensuring that the tribunal is fair and reaches the right determinations. That is not without precedent, as it has happened before in our system, most recently in the House of Lords with the Pinochet case.
I am talking about the principle of review. In our system, which the hon. and learned Gentleman knows well, the judge is independent, which is what allowed the House of Lords to review its own case. The precedent exists, and there are other examples in the system. We believe that that form of review by the tribunal is satisfactory and meets our obligations to be fair and just.
The quality of what we are attempting to achieve is also important. That is why we gave the president the power to ask the Court of Appeal for a opinion and will continue the process of giving starred decisions some degree of precedent and, through practice direction or other means, the ability to establish case
law in this important and changing area of law. As hon. Members might have seen from constituency cases, the review panel may make a determination about a particular category of claimants, usually specific to a country, that then bears down and affects many other claims. That capacity will still exist under the new system.
Those are the fundamentals. We take seriously the sovereign power, and it is right to respond to our constituents' needs. The change is not arbitrary, as it is based on principles—the review mechanism exists in other areas of law. Most important, we are trying to solve the problem of delays and the abuse of process. The hon. Members for Winchester and for Woking challenged me on that point.
The Minister has said that the Government are meeting their obligations. In the absence of a review, how can they be meeting their obligations when there is irregularity, error of law, breaches of natural justice or a lack of jurisdiction? I have seen breaches of natural justice in tribunals, so how can the Government be meeting their obligations if they deny claimants the ability to appeal from the tribunal?
The Government are meeting their obligations by the establishment of review within the tribunal. I have tried to illustrate that the situation is difficult and that there is a balancing act to be had. We must ensure that genuine claimants can move through the system quickly and that there is not an incentive to delay and abuse the system. We are talking about only 3.6 per cent. of the overall pie. The Government are meeting their obligations by establishing the review, ensuring that the president is a High Court judge and has deputies, starring the decisions and giving the president the power to refer to the Court of Appeal. That is a list of measures by which the Government are meeting their obligations under our constitutional arrangements.
As the hon. Gentleman knows from our discussions this morning, the review panel examines clear errors of law. That is the configuration of the legislation and the basis on which claimants will make their application. We are ousting judicial review because we believe that we have struck the right balance to allow people to move through the system and to make terminations.
The balance is also right in terms of the state's contribution when someone arrives in the country. We can be proud that we afford people the help of a legally aided lawyer. Much has been said about initial decisions at the IND, but a senior caseworker considers and reviews the case before making a determination. An adjudicator, assisted by a presenting officer, considers the case and makes a determination. Under the new arrangements, senior
judges will also make that determination at the review stage. That is a substantial state contribution to ensure that a genuine asylum seeker can reach finality in their case and move through the system, and that we can deal with those making false applications, who need to be removed.
What I said was that it is patently clear that we are ousting the circumstances for judicial review, and we have outlined the basis of that. The review panel can consider a case if there has been a clear error of law, not a breach of natural justice. [Interruption.] Sorry, a clear error of law can include a breach of natural justice, and the hon. Gentleman knows that. We are ousting the High Court, the Court of Appeal and the House of Lords from that arrangement.
I will avoid mentioning Wade again, but one of the first things one learns about the rules of natural justice, such as the right to a fair hearing, is that they are part of the common law. I would expect that clear breaches of natural justice would also be clear errors in law. However, the Bill excludes breaches of natural justice. What happens if the tribunal breaches natural justice but subsequently finds that it has not done so?
May I ask the hon. Gentleman to illustrate his point further? When examining a clear error of law, the review panel can be examining a breach of natural justice, but the authority of the High Court, and courts beyond that, are ousted. That is the determination that we have made.
I shall illustrate my point. When I was at a tribunal I saw a breach of the right to a fair hearing, which is the right to a fair trial in article 6 terms and the right to a fair hearing in common law terms—in other words, audi alteram partem. What happens when a tribunal breaches the right to a fair hearing and then reviews its decision through the review panel but declines to quash itself? Currently, a superior body can quash such decisions, but what happens in the absence of someone to consider such a breach?
The Minister has just said that the situation does not arise, as though that were an ex cathedra statement, but it may arise, it can arise and it has arisen. If the tribunal reviews its decision on a matter of natural justice and decides that it is adverse to natural justice, his answer to my hon. Friend the Member for South Norfolk will surely be, ''That is bad
luck. You are stuffed. There is no further recourse to law, because my Bill outlaws it.'' The short answer is that if the tribunal reviews itself wrongly, that is the end of the story. Why does the Minister not say so?
The hon. and learned Gentleman has put the matter in the way that he has chosen. I put it by saying that we have ousted judicial review. I am confident that we have quality judges in the tribunal, at the senior and junior level, who have the ability to create recommendations. I think that that deals with the point. He may not accept that position, and I understand that. That is important in the context of this debate. However, the remedy to the problems of abuse of process and delay that we seek must be balanced against the necessary review mechanisms. I have sought to illustrate why we believe that review by the senior judiciary in the tribunal and a High Court judge is satisfactory.
The hon. and learned Gentleman says that that is not satisfactory. His point could well be relevant to the House of Lords, but we say that the system will stop at the point of review by the tribunal. In doing so, we have paid regard to human rights, which is fundamental. Article 13 of the European convention on human rights requires that
''Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.''
Our proposals meet not only those obligations and the needs of the 3.6 per cent. of relevant cases, but the needs of genuine asylum seekers, who do not want to be stuck in a system in which proceedings go on for weeks and years.
It is settled case law that article 13 requires there to be a national authority that can deal with the substance of the relevant convention complaint and grant appropriate relief. The Chahal case summarised those requirements in this way:
''the notion of an effective remedy under article 13 requires independent scrutiny of the claim that there will be a breach of the claimant's Convention rights''
That makes clear our obligations, which are important. We believe that independent scrutiny will be provided by the initial judge and then, if needs be—if there has clearly been an error that will affect the outcome of the case—by a senior judge.
The Asylum and Immigration Tribunal will provide the necessary independent scrutiny, but there is no requirement to provide numerous stages of appeal and judicial review. We have heard much from hon. Members who want judicial review, but they must remember that, although the recent Home Affairs Committee report recommended a single tier, it will not work successfully unless we examine restrictions on access to the courts. The appeals system therefore needs simplifying in this area, where there is a huge incentive to delay proceedings. It is clear from the report that there is consensus on that across all parties.
I referred this morning to Mr. Justice Munby's comments about the need to reform the system, and in ''Review of the Legal Year—2002/2003'', the Master of the Rolls, Lord Phillips of Worth Matravers,
complains about the burden already placed on the courts by litigants seeking to appeal in cases that are wholly devoid of merit. A single-tier tribunal with a right of appeal to the Court of Appeal would compound that burden by driving cases upwards in abundance to the Court of Appeal, which would not remedy the problem.
I did not miss it. My point is that if we moved to a single-tier arrangement without examining restrictions on access to the higher courts, the volume of cases moving in their direction would increase. We must study the whole system if we are to solve the problem. We are seeking to deal with individual claimants who use the system to string out their cases over a long period. The arrangements that we are setting out will vastly shorten the experience, which must be a good thing for genuine claimants.
New section 108B of the Nationality, Immigration and Asylum Act 2002 gives the tribunal's president the power to refer points of law that arise during proceedings to the appropriate appellate court. We have had much debate about that provision, and it is important that we put it in place. It is right that the president should be able to use that power if he thinks that a reference is appropriate.
The Minister said that he would deal with my inquiry about section 7(1) of the Human Rights Act 1998, but he seems to have moved on to new section 108B. Section 7(1) is mentioned in subsection (4) of new section 108A. The 1998 Act states:
''A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1)'',
which concerns acts of public authorities, may
''bring proceedings against the authority under this Act in the appropriate court or tribunal, or . . . rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.''
Why is that provision in the Bill? The Minister said that he would explain, and he is here to do so. Perhaps he could do so now.
I said that I would explain when I chose and in accordance with how I want to speak to the points of the Bill. The hon. and learned Gentleman will have to wait.
Further points have been raised by hon. Members and it is right that I should deal with them. My hon. Friend the Member for Walthamstow
raised the important point that the tribunal related not only to asylum but to immigration. The Committee should remember that we are dealing with asylum and immigration as a whole and that asylum has taken most of the tribunal's time in that more applications concerned asylum. He is right to suggest that the incentive to delay is largely in asylum cases, not immigration cases.
It is also right, however, that rapid clearing of asylum cases has been the focus of the system. The establishment of a single-tier process will mean that, now that the backlog of asylum appeals is being cleared—and not only is it being cleared, but with the establishment of a single tier, the situation will improve—we shall be able to deal with a greater number of immigration cases. To that extent, the system that we propose will be good for those who want to remain in this country under the immigration rules, as opposed to the asylum rules. However, my hon. Friend made good points and I needed to clarify them.
The hon. and learned Member for Harborough pressed me on the effect of section 7(1) of the Human Rights Act 1998, which enables a person who claims to be a victim of unlawful action by a public authority to raise the issue in legal proceedings. Unlawful in this context means in a manner incompatible with convention rights. He made that point because the provision in question would oust that possibility. He is right; it does. However, the matter can be raised on review in the tribunal.
I gently point out to the hon. and learned Gentleman, in the spirit of the tradition that he knows well, that I cannot recall an occasion when it has been suggested that a judge himself, or herself, has contradicted the Human Rights Act 1998. However, if that were to happen, it could be raised on review. However, he is right to say that, in the Bill, the possibility that he mentioned is not part of the initial decision.
I am afraid that this brings us back to the point that I wanted to make earlier. The Minister is right, I am pleased to say, that this country has experienced judges who understand the law and generally do not go around breaching human rights. They can read the European convention on human rights and the Human Rights Act 1998. They can see that certain matters have been brought into English law by that Act, such as article 6 and the right to a fair trial and so on. My point, earlier, was that not everyone understands that. There are plenty of tribunals whose chairman might not understand or, even if they do, might not act on it. Is the Minister saying that, simply because the person chairing the tribunal will be sufficiently qualified, he is not worried about the possibility that they will get things wrong and that therefore there is no need for review?
I am saying that I am not aware of that possibility arising within our tradition, but a clear error can be considered on review and up to the review stage.
I am aware of it happening, because I have seen it happen. It happened with a constituency case, in which the chairman of a tribunal—a Queen's Counsel, so he should have known—completely ignored my constituent's right to a fair hearing. As a result, the tribunal's decision was quashed. According to the Minister's worldview, however, a review to decide whether the chairman had acted fairly or not would be undertaken by the same person who had acted unfairly. That, surely, is the whole problem.
I hate to return to Wade once more, but I know how keen the Minister is on this book. It states:
''The judges, with their eye on the long term and the rule of law, have made it their business to preserve a deeper constitutional logic, based on their repugnance to allowing any subordinate authority to obtain uncontrollable power.''
That is the problem.
The hon. Gentleman has made his point four or five times during our consideration of the Bill. I seek not to disagree with him, but to suggest that I have not seen occurrences of that. The point can be raised on review, so the Government believe that the necessary balance is struck. I hope that that deals with his point.
I have sought to deal with the proportion of cases that we are talking about, with the nature of our constitution, with the constitutional arrangements that we have made under the Bill, and with the remedy for mischief, the abuse of process, and delays, while recognising that it is important for the genuine claimant—the person arriving in this country who is genuinely fleeing persecution and torture—to be treated fairly and to be able to move quickly through the system. For those reasons, I cannot accept the amendment. In short, it would remove new section 108A altogether and return us to the situation that we seek to remedy.
Amendment No. 43 would provide the Court of Appeal with supervisory power. Amendment No. 44 would allow the Court of Appeal to entertain proceedings that question the tribunal's decisions or actions. Amendment No. 45 would allow removal or deportation decisions, taken as a consequence of a tribunal decision, to be challenged. To some extent, these amendments would overturn the finality that the Government hope the new system will establish. Amendments Nos. 142 and 143 would allow a court to entertain proceedings that question decisions or actions that were a nullity by reason of lack of jurisdiction, irregularity, or error of law. The amendments would return us to the situation that we inherited.
The hon. Member for Isle of Wight (Mr. Turner) raised important issues about the jurisdiction of the European Court of Human Rights and the European Court of Justice over asylum and immigration decisions taken in the UK. Amendment No. 120 would prevent appeals against the opinion of the appellate courts on referral under new section 108B from being made to the ECHR and the ECJ. The amendment is unnecessary, because an opinion cannot be appealed. An appeal would be inappropriate, as the opinion is interlocutory in the procedures. Only after an appeal
has been determined by the tribunal and any application for tribunal review has been completed, would a petition to the European Court of Human Rights be an option—at the end of the process.
The power to refer a point of Community law to the European Court of Justice under article 681 of the EC treaty is open only to a court or tribunal from whose decision no judicial remedy is provided for in national law. Importantly, that is a treaty provision and therefore outside the Bill's ambit.
I am a wee bit puzzled. A moment ago, the Minister seemed to suggest that if a matter were to fall within the scope of the EC treaty, there could not be a referral to the European Court of Justice under the preliminary ruling procedure, because that procedure encompassed only those courts or tribunals from which there was no right of appeal, but there is no right of appeal from this tribunal. Surely, therefore, it must fall within the scope of the preliminary ruling procedure.
It is an interlocutory procedure, which comes at the end of the process. It is a treaty provision, which is why the Bill does not pertain to that treaty power.
The Minister is in danger of confusing himself, if not the rest of us. One is entitled to go to the ECJ when one has exhausted one's right of appeal in the domestic tribunal system. Under the Bill, the right to appeal within the domestic appellate system will be exhausted by the tribunal and tribunal review system. As the hon. Member for Perth said to the Minister, in the absence of the right to appeal to the High Court, the Court of Appeal or the House of Lords, the next obvious step is to appeal either to the European Court of Human Rights or the ECJ.
My hon. Friend the Member for Isle of Wight wants to preclude that possibility with his amendment. Whether he is right about that is not for me to concern myself with, but I need to know what is going on in the Minister's head. If I were to exhaust my right of appeal to the tribunal, would I have a right under the Bill to go directly to the European courts? The treaty has nothing to do with it.
It is quite straightforward: yes, the hon. and learned Gentleman would. However, in seeking to oust that possibility—as I have clearly suggested, but I will have to say it again—that is within the ambit of our arrangement under the treaty. We cannot proscribe that in the Bill.
I think that I understood the Minister's answer to my hon. and learned Friend the Member for Harborough to be that once the appellate process here has been exhausted, which would not take long under his proposals, one will be able to go to the European court. In that case, what was the purpose of incorporating the European convention on human rights into UK law in the Human Rights Act 1998? What was purpose of doing that if the Government then try to take those rights away?
I know that Opposition Members are fascinated and obsessed by Europe, but I will not entertain that fascination in this Committee. The right of an individual to petition is contained in the European convention on human rights. That right cannot be affected by the Bill, but the number of cases in which Europe has sought to make determinations in this area is small in relation to the entirety of the cases that go before our tribunals.
Amendment No. 46 would oblige the president of the tribunal to refer any or all points of law that arise in the course of proceedings. It would effectively devalue the role and purpose of the tribunal.
The Minister's remarks twice included the word interlocutory. I assumed that those remarks were in response to my amendment No. 120, but not to amendment No. 121, which as far as I can see—I do not know what interlocutory means—does not involve the application of that word. Does his answer to amendment No. 120 also apply to amendment No. 121?
Am I correct that if we pass this, we will have removed the right to appeal to the Court of Appeal or the House of Lords and we will have removed the right to apply the European convention on human rights in this country through our courts? Instead people can jump straight to the European court of human rights and seek to have the convention applied as it was—
Yes, should they choose to. However, I restate that in the context of all the appeals that we have in this country, that proportion of cases is extremely small. We are concerned today with what we can do within the context of the Bill. Our arrangements with our European partners and our international obligations are matters that the House can revisit. Indeed, other Ministers in other Departments can deal with them. I have already said that I will not get into a discussion about Europe. That is subject to our treaty arrangements and the Bill is not concerned with that. It is possible to petition and to take cases to the ECJ. For those purposes, what the hon. Member for Isle of Wight suggested is right.
Amendment No. 65 would make the opinion of the appellate court binding on the tribunal. There was some discussion of that this morning. The hon. Member for Woking pressed for reasons why we could not simply make the determination of the Court of Appeal binding. He made some forceful arguments. I will consider them and come back to the Committee. [Interruption.] Forgive me, the hon. Member for Winchester made the same point. Amendment No. 66 would introduce the right of appeal effectively back up to the House of Lords. Again, that is what we seek to limit. For the reasons that I have given, I am unable to
accept the amendments but I am willing to look again at amendment No. 65 and the ability to bind the decision of the Court of Appeal.
Government amendments Nos. 108, 109 and 112 deal with the bad faith exception to the judicial review ouster. Government amendment No. 108 clarifies the bad faith exception and introduces a new subsection (3A), which provides that a court may consider whether a member of the tribunal has acted in bad faith only if satisfied that significant evidence has been adduced of dishonesty, corruption or bias. The concept of bad faith is a familiar phrase in case law and common law. It is appropriate to clarify what it means in this context. That will make clearer in what circumstances the decisions of the Asylum and Immigration Tribunal could be questioned in the courts. The Government do not want bad faith by the tribunal to go unremedied, but sustained efforts may be made to dress up lesser grievances than bad faith to win the extra time it takes for a court to consider the point.
There seems to be little difference between what is set out here and the absence of natural justice, about which my hon. Friend the Member for South Norfolk was talking, but I will let that pass for the moment. Amendment No. 108 says that a court may consider whether a tribunal has acted in bad faith, and continues:
''only if satisfied that significant evidence has been adduced of—
(b) corruption, or
What does the Minister take ''significant'' to mean in relation to the evidence? Does it touch on the dishonesty, the corruption or the bias, or does it touch only on the quality of the evidence? It is not entirely clear from the amendment.
It regards the quality of what the applicant says in terms of the grounds for making that judicial review—whether what the applicant says is bias, bad faith or corruption in this context. It is under those circumstances that we would expect the High Court to consider this matter. The hon. and learned Gentleman will know that bad faith is extremely rare in our system, but of course it is right that we require the applicant to ensure that he makes the case on firm grounds, because it would be harmful to the reputation of our judiciary in particular if the process were exploited. That is why we use the word ''significant''. It is difficult to think of a more serious matter than an allegation of bad faith against a judicial officer, but it is right that we write that exception in the Bill, which the amendment will achieve.
It seems that the Government are removing the provisions of the Human Rights Act, but then the Minister turns around and says, ''Of course, you can appeal to Europe.'' The Government are removing the point about a breach of natural justice, but then saying, ''Yes, of course if there is bias''—
which is one of the grounds for natural justice—''then you can seek a review by the higher court''. What is the point of going round in circles?
I am glad that the hon. Gentleman mentions going round in circles, because that is exactly the problem with the system that we seek to remedy. I have said what I have to say on our obligations within Europe. It must be right that where there is bias, corruption or bad faith, the appellant is able to take the case before the higher court. However, such occurrences are exceptional by their nature—they are rare in our system, but it is right that we write the provision in the Bill.
Government amendment No. 109 is a technical amendment correcting a drafting omission in proposed new section 108A. It will ensure that an appeal can be made to the Special Immigration Appeals Commission against the decision by the Secretary of State to make an order for the deprivation of citizenship.
Government amendment No. 112 is also a technical amendment to correct a drafting oversight. It will remove subsection (8) of proposed new section 108B, as it is redundant.
We have had a lengthy discussion of proposed new section 108A. I have been on my feet for some time, but it is right and proper that we should consider in depth the significant nature of the changes that the Government seek to make, and particularly the context in which the changes to our constitutional arrangements will be made.
It is now four hours since I moved amendment No. 127. We have had a long and detailed debate, although I would not say that it was necessarily a good one because I am not satisfied on a number of issues. I confess that I almost lost the will to argue my case, and I sense that I need now to be brief. However, when the Bill goes to the other place, their lordships will have a field day on some matters, and we will watch with interest. We are lucky: if this were a tribunal, and if this was the final decision, I would be most unhappy, but at least another place can look at those issues again.
I am not satisfied with the Minister's responses on the question of principle. I believe that some important principles are being broken, but he did not make a good case when comparing that to the principles that were broken by the Government for reasons of national security. I am not satisfied with his answer on that point, despite his helpful graph showing the number of cases involved. Perhaps I should have spent more time in my maths O-level classes, but my understanding is that about 26 per cent. of those who appeal gain some benefit—but we could argue for ever more about that. Even if the figure were lower, surely the principle remains the same: if the decision was changed in only one or two cases because they could go to a higher court, it is a principle worth defending. It
should be defended, whatever the number involved, but I happen to believe that the number is considerable.
I do not believe that the Minister dealt with the fact that judicial review helps to establish law. We have talked about the fact that conventions endlessly change, and we need the law to reflect those changes.
I do not want to reopen the argument on statistics, but the hon. Gentleman makes an important point. I realise where the percentages given in the flow chart for 2002 come from; it is precisely the point that I made this morning. The 3 per cent. result is obtained by going back to the beginning of the process; it does not take appeals into consideration. I estimate that in 2002 something like 2,500 people would have been included at the end of that flow chart, within the 3.6 per cent.
Whether it was one person or 2,000 people, the principle is still worth fighting for.
I am grateful that the Minister has at least acknowledged some of our concerns about the president's power. He seems prepared to consider clarifying the president's relations with higher courts and ensuring that he will be bound by judgments made on appeal. We look forward to seeing what the Minister proposes, but I am glad that there has been some progress.
I sense that the Government's intention to speed up the process will backfire. My reading of some of our discussions is that new techniques will be deployed by those who want to delay the process. It seems to me that the Home Secretary will be inundated with requests—and we, as Members of Parliament, will provide those people with access to the Home Secretary. Indeed, the Minister acknowledged that it will be possible for the Home Secretary to intervene at various stages, and individuals will take the opportunity to do so. Towards the end of the debate, it was suggested that the ability to take a case speedily to one of the European Courts could be used as a tool for delay.
The Government's intention of trying to reduce delays seems to have given those who want to abuse the system new ways to delay it. The best solution to the problem would be to get the administrative side in place first, rather than meddling with some of the fundamental principles of justice, as the Government are doing. With that in mind, I shall press the amendment to a Division.
Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 12.
Question accordingly negatived.
Amendments made: No. 108, in
clause 10, page 11, line 31, at end insert—
'(3A) A court may consider whether a member of the Tribunal has acted in bad faith, in reliance on subsection (3)(b)(ii), only if satisfied that significant evidence has been adduced of—
(b) corruption, or
No. 109, in
clause 10, page 11, line 35, after '2', insert ', 2B'.
No. 110, in
clause 10, page 12, line 16, at end insert 'or'.
No. 111, in
clause 10, page 12, line 18, leave out from 'completed,' to end of line 21.
No. 112, in
clause 10, page 12, leave out lines 40 and 41.—[Mr. Lammy.]
Question proposed, That clause 10, as amended, stand part of the Bill.