Immigration Bill

Debate between Baroness Berridge and Lord Hope of Craighead

Tuesday 6th May 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I express my gratitude to the Minister both for his amendment and for the clarifications that he has given on the guidance that will be given to tribunals. I am sure that the amendment helps to remove an element of doubt about the scope of the words “new matter”. It became clear as we discussed the matter following the debate on Report that some change was needed, and I am extremely grateful to the Minister for his willingness to listen to us and to deal with that point.

As for the guidance, I gave rather short notice of the point that the Minister has dealt with but he has dealt with it to my satisfaction. Again, I am very grateful to him for his willingness to meet us to discuss these rather tricky matters.

[Baroness Berridge (Con)]

My Lords, first, my apologies for missing the first two sentences of the debate on this amendment. I left 1 Millbank over the road as soon as debate on the Bill started but I am not as nimble as I thought and I make my apologies to the House.

I, too, am grateful to the Minister for his reflection on this matter since Report and for the amendment that the Government have laid. I join the noble and learned Lord, Lord Hope, in thanking him for the meeting that was arranged at short notice prior to the Recess. I, too, am grateful that the amendment narrows the definition of what the tribunal should consider to be a new matter and that what is or is not a new matter will be for the tribunal to determine according to the legislation. The narrowing of the definition is most welcome as, once the matter is determined to be a new matter, the tribunal cannot hear it without the consent of the Home Secretary.

I am also grateful for the specific guidance outlining the circumstances in which the Home Secretary will consent to such a new matter being in front of a tribunal. I am grateful for my noble friend’s explanation of what will happen if very junior counsel are in front of a tribunal when a new matter is raised and unfortunately they cannot get instructions or the file containing the necessary information.

Everything in the Government’s amendment is welcome as far as it goes but I do not think that it will come as any surprise to the Minister that I remain disappointed that the Government have not laid an amendment giving the tribunal an exceptional discretion to hear a new matter if the demands of justice require it. Justice is of course the overriding purpose of our courts and tribunals, and ordinarily the Secretary of State should be the primary decision-maker on a new matter but not if justice demands otherwise.

On Report, the constitution arguments were ably outlined by the noble and learned Lords, Lord Hope, Lord Woolf and Lord Brown. This is the first time that a party to any proceedings will have this kind of control over jurisdiction and I shall be interested to know—as I am sure all noble Lords will be—how it works out in practice. I would be grateful if the Minister could indicate whether, if this new power results in judicial review cases, there will be a way of keeping a record of the judicial review decisions in relation to the guidance and to consent being refused. Will those figures be available some time after the Bill is passed for the purposes of post-legislative scrutiny?

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Berridge and Lord Hope of Craighead

Monday 18th November 2013 Lords Chamber

[Baroness Berridge (Con)]

My Lords, Amendment 20 was recommended by the Joint Committee on Human Rights in its fourth report—a committee on which both my noble friend Lord Faulks and I serve. Amendment 20 is a modest compromise and adds an element of reasonableness or objectivity, giving the test more rigour, and will aid the authorities and other agencies. It will enable them to better explain their refusal to act on behalf of some people who just have different views on what they should have to tolerate from their neighbours and other people in the neighbourhood. I agree with my noble friend Lord Faulks that at this earlier stage, the test should have a reasonableness requirement, as it is at this stage that the officials of the authorities outlined in Clause 4 have to consider that behaviour.

As has already been outlined, reasonableness and proportionality are a requirement that the judiciary has to take into account when granting an injunction. This means that there will be reasonableness applied in the test by the officials and, of course, by the court rather than having a more subjective test by the officials and only later on encountering the reasonableness threshold. I spoke at Second Reading about the inordinate lengths to which witnesses have to go to collect the necessary evidence to get an ASBI or an ASBO. Merely adding after “conduct” the words “that might reasonably be regarded as” does not increase the evidence that has to be gathered and I therefore support this amendment.

[Lord Hope of Craighead (CB)]

My Lords, I will add a brief word to what has just been said in support of Amendment 20. The words “any person” at the end of Clause 1(2) are rather important; I would have thought that they make it all the more important that the words which the noble Lord, Lord Faulks, has suggested are put in. Without that, one would have the very difficult task as a judge of having to assess the evidence of one individual and deciding whether that individual is to be believed. If that individual says that he or she has been annoyed or suffered a nuisance, it would be quite difficult to say that the test was not satisfied. The reasonableness test is the one which would soften this and make it more realistic, and I would have thought that it was compatible with the general aim of the measure.