Immigration Bill

Baroness Hamwee Excerpts

Tuesday 6th May 2014 Lords Chamber

[Lord Avebury (LD)]

My Lords, the Immigration Law Practitioners’ Association has pointed out that this is a meaningless amendment because a tribunal would not be able to consider a matter that was not within its jurisdiction in any case. It is disappointing that the Government have not noticeably reflected, as my noble and learned friend assured me they would, on the alternative suggestions made by my noble friend Lady Berridge, on this clause, and supported by several noble and learned Lords, to give effect to the recommendations of the Joint Committee on Human Rights in its eighth report. Your Lordships were almost unanimous in condemning a proposal to allow one of the parties to an appeal to instruct the tribunal on what matters it can or cannot consider.

My noble and learned friend the Minister did not challenge the assertion that the tribunal had not allowed abuse of its own process in the past or had treated the Secretary of State unfairly, or that the existing process was inefficient. There was no suggestion on Report that the Government had raised any concern in the past over this alleged problem, but if we concede that there might have been cases in which a new matter—which is only to be defined in guidance, as we heard—was raised, that still does not mean that your Lordships should agree to grant this sweeping power to allow the respondent to veto the consideration of the new matter, even when the reason for its last minute appearance was the difficulty in getting hold of the presenting officer, as in one of the cogent examples given by my noble friend in introducing her amendments. In such cases the presenting officer who may have been unable to get instructions from senior counsel overnight can ask for an adjournment. My noble and learned friend did not say that he knew of any instance when such a request had been refused.

My noble friend said that she thought satellite judicial review went against what the Government were seeking to achieve, but that would still be the only way of challenging a decision by the Secretary of State to prohibit the use of a proposed new matter, after the amendment that is now before us. I asked my noble and learned friend whether the Government had made any estimate of the number of judicial review cases likely to be heard as a result of this provision and what would be the estimated reduction in the savings expected from it. I received no answer. I certainly agree with the suggestion made by my noble friend just now that a record should be kept of such cases.

The main reason why the Government insist that the Secretary of State should have this power seems to be, as we have heard, that she is the primary decision-maker of right on these applications rather than the late arrival of new matters, some of which is due to the inaccessibility of the Home Office. Nobody argues with that in principle, although my noble friend Lady Berridge pointed out that the Secretary of State had, in effect, voluntarily abdicated that role by allowing officials to make such a large number of wrongful decisions at first instance.

Even if that problem is solved, there remains a serious objection to what the Government propose. The fundamental principle of the rule of law is the right to a fair trial. In his wonderful book, The Rule of Law, the late noble and learned Lord Bingham emphasised that the right applies to,

“adjudicative procedures of a hybrid kind … proceedings in which one or more parties may suffer serious consequences if an adverse decision is made”.

He goes on to mention a recent case in the Supreme Court in Canada, where the Chief Justice, delivering the unanimous judgment of the court, said that,

“a fair hearing requires that the affected person be informed of the case against him … and be permitted to respond to that case. This right is well established in immigration law”.

Thus, if the applicant is denied the right to present what may be a crucial piece of evidence, he is denied the right to a fair trial. That right trumps the Secretary of State’s right to be the primary decider. This amendment, leaving Clause 15 effectively untouched, does not cover the mischief dealt with so effectively by my noble friend Lady Berridge.

[Baroness Hamwee (LD)]

My Lords, my noble and learned friend responded extremely speedily to my bank holiday inquiry, and I am grateful to him for that. The points about whether consent should be required for the tribunal to consider a new matter have been covered quite thoroughly, but I would like to mention the question of guidance. I was curious that this is guidance, because it must be guidance by the Home Office, and therefore the Home Secretary, to the Home Secretary. I would have understood had it been called a code of practice. The title does not really matter: it is the content. I wonder whether there is any distinction between the two.

Having seen the letter to the noble Baroness of 29 April, it seems to me that the way the guidance is described comes quite close to the exercise of discretion. I am aware that I have not put a question mark at the end of any of that, but I felt that I wanted to make those points.

[Lord Woolf (CB)]

My Lords, may I be forgiven if, despite my discourtesy in not being here earlier, I say a few words on this matter? It is very important, not only for the principles that noble Lords have clearly expressed already, but purely from a practical point. I urge the Government to think again about this, based on the experience of dealing with immigration cases for the majority of my career in the legal profession. The repeated use of the justice system to obtain delay was always a problem. I understand the motivation of the Government all too well, but that does not justify the departure from principle about which we have heard.

However, this is the point that I am most anxious to make. In reality, if the first tribunal before whom this matter is happening does not have the power to say what the procedure will be, that will create a lacuna which will be exploited more and more frequently by those who realise that they just need to make a new point and the Government’s representative will have to ask for adjournments so that he or she can take instructions on what action to take. Not only is this wrong in principle, it will create an undesirable position. Although it is not intended, it will undermine the status of those who adjudicate on these matters. More and more immigration matters are now being dealt with outside the High Court, so we should not be undermining that status but supporting it.

I urge the Government to take this away again. I do not think that they have met either the problems of principle that were raised on the last occasion that this was discussed or, more importantly perhaps, the practicalities of sitting on a tribunal and having to deal with applications. As an adjudicator, if you are in doubt about the right course to take, of course you can always adjourn. Most legal systems are plagued by unnecessary adjournments. In my view, what the Government are creating here is unnecessary scope for adjournments. Even if there is just the ability to make applications—you can never stop them—they will result in adjournments, which I would have thought is the last thing the Home Office wants.

--- Later in debate ---

[Baroness Hamwee]

My Lords, with the leave of the House—I know that it is unusual to speak at this stage—I promised my noble friends that I would say something at the appropriate point. It will have been an open secret to your Lordships that a number of us on the Liberal Democrat Benches have found these issues particularly difficult. The negotiations within our little group were sometimes quite difficult, because these are difficult issues.

I am sure that in the next Session we will tax my noble friend the Minister with matters that are mostly outside the scope of the Bill but which some of my noble friends showed considerable ingenuity in raising. I thank the Minister personally for his generosity, including extraordinary generosity with his time and his patience.

Bill passed and returned to the Commons with amendments.