Illegal Migration Bill

Debate between Lord Hope of Craighead and Lord Bishop of Durham

Report stage
Wednesday 5th July 2023 Lords Chamber

[The Lord Bishop of Durham]

I was about to sit down, but I will note that. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I have two amendments in this group, which very much follow the points raised by the right reverend Prelate.

As the noble Viscount, Lord Hailsham, has been pointing out, there is a problem about Clause 56(5), to which the right reverend Prelate’s amendment draws attention. As it stands, the subsection restricts the grounds of review to errors of law only. My Amendment 158A seeks to open up the scope for review, following up on a recommendation from the Constitution Committee which pointed out, as the right reverend Prelate has, that the opportunities for error on grounds of fact in this situation are very many. Indeed, the information on which the committee was proceeding was that usually it is on errors of fact that these decisions go wrong.

Amendment 158A rewrites subsection (5) to say that review is available when the decision was either

“wrong in law, or … proceeded on information about the person’s age which was incomplete, misleading or otherwise so seriously misinformed that no reasonable decision-maker would have relied on it”.

I think that the right reverend Prelate would welcome my amendment because it is trying to achieve what he is achieving. Like the noble Viscount, Lord Hailsham, I am worried that, if subsection (5) remains as it is, it will greatly restrict the opportunity for review on grounds of errors of fact.

Although I do not propose to put my amendment to a vote, can the Minister consider very carefully whether the grounds for review that I am suggesting are available? They come very close to what lawyers describe as “Wednesbury unreasonableness”. I do not know whether the Minister would accept that what I have in my formulation would be available as a ground of review that the decision was wrong in law anyway because it was so defective, but it is a very important qualification on the absolute precision which subsection (5), as it presently stands, lays down. Without elaborating further, I seek the Minister’s view on what I am proposing. It is important to know exactly to where the phrase “wrong in law” extends.

My Amendment 168AA, which was also discussed in Committee that evening at 1.30 am, is a quite different one, again promoted by a recommendation of the Constitution Committee. It seeks to ask that the power to make regulations under Clause 57(1) regarding the effect of a person’s decision

“not to consent to the use of a specified … method for the purposes of an age assessment … where there are no reasonable grounds”

for doing so should be moved from the position where it is subject to the negative procedure, so that it is subject to the affirmative procedure.

The regulation power in Clause 57(1) does not take the blunt approach of saying that, if somebody refuses to consent, then he should simply be treated as being over the age of 18. Commendably, the clause is phrased as having regard to the circumstances. One can well understand that there could be a variety of circumstances in which a person withholds consent. The problem with leaving the provision as it stands to the negative procedure is that there is no opportunity for considering whether the circumstances are ones that we would wish to accept. Amendment 168AA seeks to add the regulation-making power under Clause 57(1) to the list in Clause 64(4) of those regulations which are to be laid in draft and approved by resolution of each House.

Given the wide scope of the power in Clause 57(1) and its importance to the individual, I suggest that this is a reasonable amendment to make. Although it was not possible for the matter to be debated very fully in Committee at 1.30 am, I hope that the Minister can enlarge on his reply. He replied very briefly then. Before another noble Lord intervened to attract his attention elsewhere, he said that he had noted my amendment and that the Government would “respond before Report stage”. I have had no response so far. Can the Minister consider more carefully my proposal?