Asylum and Immigration (Treatment of Claimants, etc.) Bill

Public Bill Committee, 20 January 2004.

Standing Committee B

Clause 10 - Unification of appeal system

David Lammy (Labour, Tottenham)

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

Government amendments Nos. 103 and 104.

Amendment No. 41, in

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

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

David Lammy (Labour, Tottenham)

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

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

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

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

Humfrey Malins (Conservative, Woking)

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

Tom Harris (Labour, Glasgow Cathcart)

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

David Taylor (Labour/Co-operative, North West Leicestershire)

That is appropriate on this occasion.

David Lammy (Labour, Tottenham)

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

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

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

Neil Gerrard (Labour, Walthamstow)

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

David Lammy (Labour, Tottenham)

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

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

Neil Gerrard (Labour, Walthamstow)

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

David Lammy (Labour, Tottenham)

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

Mark Oaten (Liberal Democrat, Winchester)

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

David Lammy (Labour, Tottenham)

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

Humfrey Malins (Conservative, Woking)

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

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

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

Those are official figures. Does the Minister accept them?

David Lammy (Labour, Tottenham)

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

Edward Garnier (Conservative, Harborough)

Will the Minister give way?

David Lammy (Labour, Tottenham)

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

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

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

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

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

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

Edward Garnier (Conservative, Harborough)

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

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. That is rather a long intervention.

Edward Garnier (Conservative, Harborough)

I think the Minister got my point.

David Lammy (Labour, Tottenham)

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

Mark Oaten (Liberal Democrat, Winchester)

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

David Lammy (Labour, Tottenham)

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

David Heath (Liberal Democrat, Somerton and Frome)

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

David Taylor (Labour/Co-operative, North West Leicestershire)

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

Mr. Lammy rose—

Humfrey Malins (Conservative, Woking)

Will the Minister give way?

David Lammy (Labour, Tottenham)

I give way.

Humfrey Malins (Conservative, Woking)

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

David Lammy (Labour, Tottenham)

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

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

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

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

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

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

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

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

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

Mark Oaten (Liberal Democrat, Winchester)

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

David Lammy (Labour, Tottenham)

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

Mark Oaten (Liberal Democrat, Winchester)

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

David Lammy (Labour, Tottenham)

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

Humfrey Malins (Conservative, Woking)

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

David Lammy (Labour, Tottenham)

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

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

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

David Lammy (Labour, Tottenham)

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

David Heath (Liberal Democrat, Somerton and Frome)

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

David Lammy (Labour, Tottenham)

I do not think that the hon. Gentleman is listening.

David Heath (Liberal Democrat, Somerton and Frome)

I am listening carefully.

David Lammy (Labour, Tottenham)

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

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

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

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

which was the test used previously.

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

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

Richard Bacon (Conservative, South Norfolk)

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

David Lammy (Labour, Tottenham)

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

Richard Bacon (Conservative, South Norfolk)

The president of the tribunal?

David Lammy (Labour, Tottenham)

Yes.

Richard Bacon (Conservative, South Norfolk)

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

David Lammy (Labour, Tottenham)

We shall go on to discuss section 108—

Richard Bacon (Conservative, South Norfolk)

If the answer is no, say so.

David Lammy (Labour, Tottenham)

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

Humfrey Malins (Conservative, Woking)

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

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

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

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

David Lammy (Labour, Tottenham)

Shame.

Humfrey Malins (Conservative, Woking)

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

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. Mr. Malins must be heard.

Humfrey Malins (Conservative, Woking)

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

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

''almost unprecedented in peacetime.''

He reminded us that

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

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

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

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

David Heath (Liberal Democrat, Somerton and Frome)

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

Humfrey Malins (Conservative, Woking)

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

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

Tom Harris (Labour, Glasgow Cathcart)

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

Humfrey Malins (Conservative, Woking)

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

Tom Harris (Labour, Glasgow Cathcart)

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

Humfrey Malins (Conservative, Woking)

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

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

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

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

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

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

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

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

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

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

Amendment No. 101 says that a request to review

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

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

David Lammy (Labour, Tottenham)

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

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

Humfrey Malins (Conservative, Woking)

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

Tom Harris (Labour, Glasgow Cathcart)

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

Humfrey Malins (Conservative, Woking)

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

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

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

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

Mark Oaten (Liberal Democrat, Winchester)

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

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

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

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

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

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

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

David Heath (Liberal Democrat, Somerton and Frome)

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

Mark Oaten (Liberal Democrat, Winchester)

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

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

Claire Curtis-Thomas (Labour, Crosby)

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

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

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

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

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

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

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

My personal experience confirms that.

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

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

Neil Gerrard (Labour, Walthamstow)

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

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

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

David Lammy (Labour, Tottenham)

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

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. Even ministerial interventions must be brief.

Neil Gerrard (Labour, Walthamstow)

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

Humfrey Malins (Conservative, Woking)

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

Neil Gerrard (Labour, Walthamstow)

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

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

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

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

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

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

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

Annabelle Ewing (Scottish National Party, Perth)

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

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

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

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

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

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

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

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

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

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

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

David Lammy (Labour, Tottenham)

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

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

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

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

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

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

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

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

Mark Oaten (Liberal Democrat, Winchester)

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

David Lammy (Labour, Tottenham)

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

Mark Oaten (Liberal Democrat, Winchester)

It happens all the time.[Laughter.]

David Lammy (Labour, Tottenham)

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

Humfrey Malins (Conservative, Woking)

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

David Lammy (Labour, Tottenham)

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

Annabelle Ewing (Scottish National Party, Perth)

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

David Lammy (Labour, Tottenham)

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

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

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

Richard Bacon (Conservative, South Norfolk)

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

David Lammy (Labour, Tottenham)

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

David Heath (Liberal Democrat, Somerton and Frome)

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

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

David Lammy (Labour, Tottenham)

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

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

Humfrey Malins (Conservative, Woking)

I was quoting.

David Lammy (Labour, Tottenham)

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

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

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

Andrew Turner (Conservative, Isle of Wight)

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

David Lammy (Labour, Tottenham)

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

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

Mark Oaten (Liberal Democrat, Winchester)

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

David Lammy (Labour, Tottenham)

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

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

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

Humfrey Malins (Conservative, Woking)

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

David Lammy (Labour, Tottenham)

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

Humfrey Malins (Conservative, Woking)

Rules.

David Lammy (Labour, Tottenham)

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

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

Richard Bacon (Conservative, South Norfolk)

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

''The Anisminic case''—

which was the leading case—

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

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

David Lammy (Labour, Tottenham)

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

Richard Bacon (Conservative, South Norfolk)

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

David Lammy (Labour, Tottenham)

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

Amendment agreed to.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 40, in

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

David Taylor (Labour/Co-operative, North West Leicestershire)

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

Humfrey Malins (Conservative, Woking)

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

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

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

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

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

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

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

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

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

Government amendment No. 102 states that,

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

such a hearing can be held. The Government's position has moved a fraction, but the amendment presumes that the Government have conceded that the tribunal must hold an oral hearing in some cases. Why did they concede that point only a few days ago? If they thought, until a fortnight ago, that an oral hearing was out of the question, what suddenly persuaded them to change their mind?

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

''the exceptional nature of the case''?

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

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

David Lammy (Labour, Tottenham)

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

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

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

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

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

Mark Oaten (Liberal Democrat, Winchester)

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

David Lammy (Labour, Tottenham)

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

Mark Oaten (Liberal Democrat, Winchester)

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

David Lammy (Labour, Tottenham)

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

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

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

Humfrey Malins (Conservative, Woking)

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

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

David Heath (Liberal Democrat, Somerton and Frome)

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

Humfrey Malins (Conservative, Woking)

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 102, in

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

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

No. 103, in

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

No. 104, in

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

No. 105, in

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

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

No. 42, in

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

No. 107, in

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

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 127, in

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

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss the following:

Amendment No. 43, in

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

'save the Court of Appeal'.

Amendment No. 44, in

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

'save the Court of Appeal'.

Amendment No. 45, in

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

Amendment No. 142, in

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

Amendment No. 143, in

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

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

(vi) any other matter, and

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

Government amendments Nos. 108 and 109.

Amendment No. 121, in

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

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

Amendment No. 46, in

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

Amendment No. 65, in

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

Amendment No. 66, in

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

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

Amendment No. 120, in

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

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

Government amendment No. 112.

Mark Oaten (Liberal Democrat, Winchester)

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

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

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

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

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

Standing Committee B

Clause 10 - Unification of appeal system

Marion Roe (Conservative, Broxbourne)

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

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

Amendment No. 46, in

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

Amendment No. 65, in

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

Amendment No. 66, in

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

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

Amendment No. 120, in

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

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

Government amendment No. 112.

Mark Oaten (Liberal Democrat, Winchester)

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—

David Lammy (Labour, Tottenham)

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.

Mark Oaten (Liberal Democrat, Winchester)

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.

David Heath (Liberal Democrat, Somerton and Frome)

Does my hon. Friend agree that it is indeed a novel principle of dealing with an abuse of process by removing the process, rather than the abuse?

Mark Oaten (Liberal Democrat, Winchester)

My hon. Friend makes the point eloquently.

Humfrey Malins (Conservative, Woking)

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?

Mark Oaten (Liberal Democrat, Winchester)

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.

Tom Harris (Labour, Glasgow Cathcart)

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?

Mark Oaten (Liberal Democrat, Winchester)

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?

Bob Blizzard (Labour, Waveney)

Just for clarity, does the hon. Gentleman say that the Government proposals should play no part in the speeding-up process?

Mark Oaten (Liberal Democrat, Winchester)

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.

Andrew Turner (Conservative, Isle of Wight)

In respect of the hon. Gentleman's last comments. Is he talking about the measures in the Bill, or merely the measures in the clause?

Mark Oaten (Liberal Democrat, Winchester)

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.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

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?

Mark Oaten (Liberal Democrat, Winchester)

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.

Annabelle Ewing (Scottish National Party, Perth)

Does the hon. Gentleman agree that the rule of law relies on legal guarantees enforceable in independent courts, not on political assurances?

Mark Oaten (Liberal Democrat, Winchester)

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.

Neil Gerrard (Labour, Walthamstow)

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.

Humfrey Malins (Conservative, Woking)

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.

Neil Gerrard (Labour, Walthamstow)

Too many.

Humfrey Malins (Conservative, Woking)

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?

Edward Garnier (Conservative, Harborough)

The Government.

Humfrey Malins (Conservative, Woking)

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?

Tom Harris (Labour, Glasgow Cathcart)

I cannot answer the hon. Gentleman's question about why it takes four months, but perhaps he can say why, under his Government, it took 20?

Humfrey Malins (Conservative, Woking)

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.

Tom Harris (Labour, Glasgow Cathcart)

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.

Humfrey Malins (Conservative, Woking)

Is the hon. Gentleman saying that his Government's much-heralded regulation of asylum advisers is ineffective?

Tom Harris (Labour, Glasgow Cathcart)

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.

Annabelle Ewing (Scottish National Party, Perth)

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?

Tom Harris (Labour, Glasgow Cathcart)

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.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

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.

Tom Harris (Labour, Glasgow Cathcart)

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.

Edward Garnier (Conservative, Harborough)

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.

Tom Harris (Labour, Glasgow Cathcart)

I take the advice of the hon. Member for Woking (Mr. Malins) who said that if a system is not working it is reviewed to see how it might be improved. The Bill suggests a practical improvement to the current system.

David Lammy (Labour, Tottenham)

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?

Tom Harris (Labour, Glasgow Cathcart)

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.

Mark Oaten (Liberal Democrat, Winchester)

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?

Tom Harris (Labour, Glasgow Cathcart)

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.

Mark Oaten (Liberal Democrat, Winchester)

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.

Tom Harris (Labour, Glasgow Cathcart)

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.

Annabelle Ewing (Scottish National Party, Perth)

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.

Tom Harris (Labour, Glasgow Cathcart)

Poor wee souls.

Annabelle Ewing (Scottish National Party, Perth)

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.

Andrew Turner (Conservative, Isle of Wight)

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?

Annabelle Ewing (Scottish National Party, Perth)

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.

Edward Garnier (Conservative, Harborough)

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—

Marion Roe (Conservative, Broxbourne)

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.

Edward Garnier (Conservative, Harborough)

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.

Richard Bacon (Conservative, South Norfolk)

The Minister said this morning that when we reached our discussion of new section 108A, that discussion would almost certainly be much more wide-ranging? Is that not what my hon. and learned Friend seeks to do?

Edward Garnier (Conservative, Harborough)

I do not want to undermine what Mrs. Roe said just a moment ago.

Marion Roe (Conservative, Broxbourne)

What a good idea.

Edward Garnier (Conservative, Harborough)

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.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

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.

Edward Garnier (Conservative, Harborough)

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—

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

Will the hon. and learned Gentleman give way?

Edward Garnier (Conservative, Harborough)

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.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

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.

Edward Garnier (Conservative, Harborough)

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.

Claire Curtis-Thomas (Labour, Crosby)

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?

Marion Roe (Conservative, Broxbourne)

Before the hon. and learned Gentleman answers, I must say to the Committee that we cannot have a rerun of this morning's debate.

Edward Garnier (Conservative, Harborough)

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,

(ii) irregularity,

(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.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

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?

Edward Garnier (Conservative, Harborough)

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.

John Heppell (Labour, Nottingham East)

I am a little confused. Will the hon. and learned Gentleman explain to which amendment he is speaking?

Edward Garnier (Conservative, Harborough)

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.

David Heath (Liberal Democrat, Somerton and Frome)

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?

Edward Garnier (Conservative, Harborough)

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.

Richard Bacon (Conservative, South Norfolk)

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:

''Sir Thomas More, as Speaker of the Commons, in spite of Cardinal Wolsey's imperious demand, refuses to grant King Henry VIII a subsidy without due debate.''

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.''

Wade continues:

''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.

David Lammy (Labour, Tottenham)

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.

Richard Bacon (Conservative, South Norfolk)

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.

[Part II]

[Continuation from column 288]

Richard Bacon (Conservative, South Norfolk)

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—

Edward Garnier (Conservative, Harborough)

He is not the Lord Chancellor, then.

Richard Bacon (Conservative, South Norfolk)

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.

Andrew Turner (Conservative, Isle of Wight)

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.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

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?

Andrew Turner (Conservative, Isle of Wight)

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''

Mr. B

''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.

David Lammy (Labour, Tottenham)

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—

John Heppell (Labour, Nottingham East)

No, it will finish tonight.

David Lammy (Labour, Tottenham)

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.

Mark Oaten (Liberal Democrat, Winchester)

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.

David Lammy (Labour, Tottenham)

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.

Edward Garnier (Conservative, Harborough)

The Minister may come to the issue, but so far he is yet to discuss the disapplication of section 7(1) of the Human Rights Act 1998. Perhaps he could do so.

David Lammy (Labour, Tottenham)

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.

The rest of the debate is in Hansard.